Appellate Authority Modifies Initial Ruling on “SIKA Block Joining Mortar” Classification Under Tariff Item 3824.
Case-Laws
GST
Classification of product, “SIKA Block Joining Mortar” – 'S
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Appellate Authority Confirms Appellant as Intermediary for University Course Promotion under IGST Act Section 2(13.
Case-Laws
GST
Export of services or not? – The Appellant promotes the courses of the University, finds suitable prospective students to undertake the courses, and, in accordance with University procedures and requirements, recruits and assists in the recruitment of suitable students, and hence, the Appellant is to be considered as an intermediary in terms of Section 2(13)
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Appellate Authority for Advance Ruling: UPS with external battery not a composite supply under GST due to independent use.
Case-Laws
GST
Composite Supply/ Mixed Supply – UPS supplied with external storage battery – naturally bundled goods – The storage battery has multiple uses and can be put to different uses and when supplied separately with static converter (UPS) it cannot be considered as a composite supply or a naturally bundled supply. – Order of AAR confirmed by the Appellate AAR
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M/s Baheti Agri Links Versus CC, CGST & CE, Indore
Service Tax
2018 (8) TMI 958 – CESTAT NEW DELHI – 2019 (26) G. S. T. L. 79 (Tri. – Del.)
CESTAT NEW DELHI – AT
Dated:- 7-8-2018
S. T. Appeal No. 51195 of 2018-SM – Final Order No. 52743/2018
Service Tax
Hon'ble Sh. Ashok Jindal, Member ( Judicial )
Sh. Krishan Garg, C. A. for the appellant
Sh. K. Poddar, AR for the respondent
ORDER
Per : Ashok Jindal
The appellant is in appeal against the impugned order wherein cenvat credit sought to be denied on the premise that the invoices are not in the name of the appellant and on telephone services, Cenvat credit was denied on the premise that telephones were installed in the office of the appellant are in the name of the pa
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the office of the appellant are in the name of the partners. Therefore, they are not entitled to take cenvat credit on telephone services. In these facts, a show cause notice was issued to the appellant to deny cenvat credit and the matter was adjudicated. Consequently, demand was affirmed alongwith interest and penalty was also imposed. The said order was affirmed the Commissioner. Against the said order, the appellant is before me in the present appeal.
2. Ld. Consultant appearing on behalf of the appellant submits that M/s Baheti Soya Links is a division of M/s Baheti Agri Link and preparing consolidated Balance Sheet in both the cases. It is also contended that services tax paid by M/s Baheti Soya Links has been accepted by the Departm
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Heard the parties considered the submissions.
5. In this case, show cause notice issued to deny cenvat credit to the appellant on the following grounds.
(a) The invoices of M/s Baheti Soya Links are not in the name of the appellant, therefore, they are not entitled to avail cenvat credit.
(b) telephones were installed in the office of the appellant are in the name of the partners.
In both the issues cenvat credit has been availed and same was agitated before the adjudicating authority as well as the ld. Commissioner (Appeals). Therefore, ld. Commissioner did not give any finding on the issues of denial of cenvat credit of telephone service. If ld. Commissioner has not discussed the issue, it shows that he has not passed the order in a
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Seeks to prescribe concessional SGST rate on specified handicraft items, to give effect to the recommendations of the GST Council in it’s 28th meeting held on 21.07.2018
21/2018-State Tax (Rate) Dated:- 7-8-2018 Mizoram SGST
GST – States
Mizoram SGST
Mizoram SGST
No.J.21011/2(viii)/2018-TAX
GOVERNMENT OF MIZORAM
TAXATION DEPARTMENT
…
NOTIFICATION
No. 21/2018-State Tax (Rate)
Dated Aizawl the 7th August, 2018
In exercise of the powers conferred by sub-section (1) of section 11 of the Mizoram Goods and Services Tax Act, 2017 (6 of 2017), the Governor of Mizoram, on being satisfied that it is necessary in the public interest so to do, on the recommendations of the Council, hereby exempts the intra-state supplies of handicraft goods, the description of which is specified in column (3) of the Table below, falling under the tariff item, sub-heading, heading or Chapter, as specified in the corresponding entry in column (2), from so much state tax leviable thereo
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ding inlay work, casks, barrel, vats)
6%
4.
4414 00 00
Wooden frames for painting, photographs, mirrors etc
6%
5.
4420
Statuettes & other ornaments of wood, wood marquetry & inlaid, jewellery box, wood lathe and lacquer work [including lathe and lacquer work, ambadi sisal craft]
6%
6.
4503 90 90, 4504 90
Art ware of cork [including articles of sholapith]
6%
7.
4601 and 4602
Mats, matting and screens of vegetable material, basketwork, wickerwork and other articles of vegetable materials or other plaiting material, articles of loofah (including of bamboo, rattan, canes and other natural fibres, dry flowers (naturally dried), articles thereof, ringal, raambaan article, shola items, Kouna/chumthang (water reeds) crafts, articles of Water hyacinth, korai mat]
2.5%
8.
4823
Articles made of paper mache
2.5%
9.
5607, 5609
Coir articles
2.5%
10.
56090020, 56090090
Toran, Doorway Decoration made from cotton yarn or woollen yarn and aabhala (mirror) with or without han
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7018 90 10
Glass statues [other than those of crystal]
6%
25.
7020 00 90
Glass art ware [incl. pots, jars, votive, cask, cake cover, tulip bottle, vase]
6%
26.
7113 11 10
Silver filigree work
1.5%
27.
7117
Handmade imitation jewellery (including natural seeds, beads jewelry, cardamom garland)
1.5%
28.
7326 90 99
Art ware of iron
6%
29.
7419 99
Art ware of brass, copper/ copper alloys, electro plated with nickel/silver
6%
30.
7616 99 90
Aluminium art ware
6%
31.
8306
Bells, gongs and like, non-electric, of base metal; statuettes, and other ornaments, of base metal; photograph, picture or similar frames, of base metal; mirrors of base metal; (including Bidriware, Panchloga artware, idol, Swamimalai bronze icons, dhokra jaali)
6%
32.
9405 10
Handcrafted lamps (including panchloga lamp)
6%
33.
9401 50, 9403 80
Furniture of bamboo, rattan and cane
6%
34.
9503
Dolls or other toys made of wood or metal or textile material [incl wooden toys of sawantw
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In Re: Aditya Birla Retail Ltd.,
GST
2018 (8) TMI 1072 – APPELLATE AUTHORITY FOR ADVANCE RULING MAHARASHTRA – 2018 (15) G. S. T. L. 742 (App. A. A. R. – GST)
APPELLATE AUTHORITY FOR ADVANCE RULING MAHARASHTRA – AAAR
Dated:- 7-8-2018
MAH/AAAR/SS-RJ/05/2018-19
GST
SMT. SUNGITA SHARMA AND SHRI RAJIV JALOTA, MEMBER
PROCEEDING
(Under Section 101 of the Central Goods and Service Tax Act, 2017 and the Maharashtra Goods and Service Tax Act, 2017)
At the outset, we would like to make it clear that the provisions of both the CGST Act and the MGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provisions under the MGST Act.
The present appeal has been filed under Section 100 of the Central Goods and Services Tax Act, 2017 and the Maharashtra Goods and Services Tax Act, 2017 [hereinafter referred to as “the CGST Act and MGS
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Trade Marks Act'). Further, the packaging of the subject goods also bears the 'AdityaBirla' logo which is the registered trademark of Aditya Birla Management Corporation Pvt. Limited, under the Trade Marks Act, which trademark has been licensed to the Appellant for specified purposes. The subject goods are presently sold from its 'More Stores'. The brand name 'More', pertaining to such 'More Stores', is also registered under the Trade Marks Act. However, from the 'More' stores, several categories of products, manufactured by different companies, are also sold. Such products may or may not be bearing a brand name.
C. The subject goods are either processed and packed 'in-house' by the Appellant (Stream 1) or are procured in processed and packed form from third party vendors (Stream 2). The modus operandi followed by the Appellant in respect of the said transaction streams, and, the nature of details disclosed on the packaging of the subject goods under such streams is as follows:
(i)
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fter procured by the Appellant for being sold from its More Stores.
The package of subject goods sold by the Appellant under Stream 2 inter alia bears the name of the manufacturer, the declaration 'Marketed By-Aditya Birla Retail Limited' and the registered trademarks viz. 'More trademarks' and the 'Aditya Birla' logo. The package also bears a telephone number and an email address, for being contacted in case of consumer complaints.
It is relevant to note that some of the subject goods are sold by the Appellant in different quality variants, determined based on various parameters including the quality or size of grains or seeds, nature of processing undertaken, nutritional content, sourcing, etc. It therefore becomes essential for the Appellant to have appropriate disclosures on the package of such subject goods so as to enable the customers to identify and buy products based on their requirements, budget and preferences. Therefore, in respect of such subject goods, under both stream
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8th June 2017 ('CGST Rate Notification'), and, corresponding entries under Schedule 1 to Notification No. 1/2017-lntergrated (Serial no. 46, 48, 50, 51, 53) tax, dated 28th June 2017 ('IGST Rate Notification') and under Schedule 1 to Notification No. 1/2017-State tax, dated 29th June 2017 ('SGST Rate Notification'), the supply of subject goods, when put up in unit containers and inter alia bearing a 'registered brand name', attract GST at the rate of 5%. The Appellant, in respect of supply of the subject goods under either streams, is presently discharging GST at the rate of 5%.
F. It is relevant to note that the requirements to (a) have specific declaration on the package of the subject goods, as regards its manufacturer, and, (b) to provide contact details in relation to consumer complaints (customer care related details), are statutory requirement in terms of the Legal Metrology Act, 2009 read with the Legal Metrology (Packaged Commodity) Rules, 2011, and, the Food Safety and Stand
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mentioned on every package' …Explanation III- In respect of packages containing food articles, the provisions of this sub-rule shall not apply, and instead, the requirement of the Food Safety and Standards Act,2006 (34 of 2006) and the rules made there under shall apply
(2) Every package shall bear the name, address, telephone number, email address of the person who can be or the office which can be contacted, in case of consumer complaints.
Food Safety and Standards Act, 2006
'23. Packaging and labelling of foods.
(1) No person shall manufacture, distribute, sell or expose for sale or dispatch or deliver to any agent or broker for the purpose of sale, any packaaed food products which are not marked and labelled in the manner as may be specified by reaulations..
Food Safety and Standards (Packaging and Labelling) Regulations, 2011
'CHAPTER-2- Packaging and Labelling
6. Name and complete address of the manufacturer-
(i) The name and complete address of the manufact
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y Provisions, and would have a declaration- 'Marketed by Aditya Birla Retail Limited'.
Under both the streams, for some of the subject goods, the package would also bear a certain declaration for the sole purpose indicating the quality variant of the product so as to enable the customers to identify and buy products based on their requirements, budget and preferences. In this regard, the Appellant intends to make the following indicative declarations on the product package by using common/generic words-
– The term 'Value' with a corresponding statement that the said term is merely a quality indicator and that it indicates that the product is of a standard quality;
– The term 'Choice' with a corresponding statement that the said term is merely a quality indicator and that it indicates that the product is of a premium quality.
– The term 'Superior' with a corresponding statement that the said term is merely a quality indicator and that it indicates that the product
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ation') and Notification No.2/2017-State Tax (Rate) dated 29th June 2017) [collectively referred to as 'the Exemption Notifications']?
* Question 2- Whether the subject goods proposed to be sold under Stream 2, where the package of the subject goods would have a declaration mentioning the name and registered address of the manufacturer as per the statutory requirement under the Subject Statutory Provisions as also the declaration 'Marketed by- Aditya Birla Retail Limited' can be considered as 'not bearing a brand name', and, accordingly eligible for exemption in terms of relevant entries to the Exemption Notifications?
* Question 3- Whether the declarations made on the package, by inter alia using common/generic terms viz. 'Value', 'Choice' and 'Superior', for the sole purpose of indicating the quality of the product so as to enable the customers to identify and buy products based on their requirements, budget and preferences can be construed to be a 'brand name' for the purpose of
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Foods Limited v. CCEx. Meerut-ll 2006 (198) E.L.T. 323 (S.C.),that the declaration of name of a company as per the statutory requirements would not amount to 'bearing a brand name'. This case is squarely applicable to the facts of the present case. This legal position has also been subsequently followed by the Courts/Tribunals including in the case of Commissioner of Central Excise v. Synotex Industries, [2012 (278) ELT 90 (Tri-Kolkata)].
(b) The reliance placed on the decision of the Hon'ble Supreme Court in the case of the Commissioner of Central Excise, Trichy vs Grasim Industries Ltd [2005 (183) E.L.T. 123 (S.C.)] is totally misplaced as the relevant facts and the issue involved therein are distinguishable from Appellant's case and accordingly the said decision is inapplicable.
(c) That the Impugned Order erroneously holds that availability of the subject goods only at More Stores would render the subject goods branded. On a plain reading of the Exemption Notificatio
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ithout prejudice to one another.
A. The name of the Appellant does not qualify as “brand name” in respect of the subject goods for the purpose of the Exemption Notifications
3. In terms of the relevant entries of the CGST Notification1, the exemption thereunder would be available to supplies of the subject goods where the following conditions are satisfied:
(a) Where the subject goods fall under the tariff item, sub-heading, heading or Chapter as specified in the column (2) of the CGST Notification, and;
(b) Where the subject goods are other than those (i) put up in unit containers, and (ii) bearing a registered brand name; or bearing a brand name on which an actionable claim or an enforceable right in the court of law is available, other than those where any actionable claim or any enforceable right in respect of such brand name has been voluntarily foregone, [subject to the conditions as set out in the Annexure to the CGST Notification].
The relevant part of the CGST
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g a brand name on which an actionable claim or enforceable right in a court of law is available [other than those where any actionable claim or enforceable right in respect of such brand name has been foregone voluntarily, subject to the conditions as in the ANNEXURE1]
For the purpose of the exemption notifications, the terms 'unit containers', 'brand name' and 'registered brand name' have been defined to mean as follows:
(i) “unit container” means a package, whether large or small (for example, tin, can, box, jar, bottle, bag, or carton, drum, barrel, or canister) designed to hold a predetermined quantity or number, which is indicated on such package
(ii))(a) The phrase “brand name” means brand name or trade name, that is to say, a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods
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ation is reproduced above.
4. In terms of the above meaning, a name or a mark would become a 'brand name', for the purpose of the CGST Notification, only when the following conditions are satisfied:
(i) When such name or mark is used in relation to specified goods; and
(ii) When such name or mark is so used for the purpose of indicating a connection in the course of trade between such specified goods and the person using the name or mark, with or without any indication of the identity of that person.
5. In this regard, it is submitted that for any name to qualify as a brand name, it must be used in relation to specified goods indicating a connection in the course of trade between the said goods and the person, with or without indicating the identity of such person. In other words, the use of the name should be to associate specified goods with the person, in a manner that the customer would identify the specified goods with that person. Mere mention of the name of the m
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and “Product mark” or “Brand name” has been clearly brought out by way of reference to the decision in Astra Pharmaceutical Pvt. Ltd.(supra). It is stated therein that “House mark” is used on all the products of the manufacturer and that it is usually a device or a form of emblem of words or both. It was also pointed out that for each product a separate mark known as a “Product mark” or “Brand name” is used which is invariably a word or combination of word and letter or numeral by which the product is identified and asked for….In the book of “Law of Trade Marks” by K.C Kailasam and Ramu Vedaraman the distinction between 'Product mark' and 'House mark' has been beautifully delineated, which is as under :”It is possible that the proprietor may use several trade marks in respect of his goods(known as Product mark), besides using a common mark in all his products to indicate the origin of the goods from the enterprise (known as House mark). This practice is more predominant in the pharma
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lar products, manufactured by different companies, are also sold, which products may or may not be bearing a brand name. The Appellant has over the course of period made concentrated efforts and incurred costs, which inter alia include significant efforts by way of advertising and marketing, to publicize and establish the 'More' brand. It is consequent to such efforts that the customers of the subject goods recognize the brand and identity and ask for the products of the said brand. Customers of the subject goods who enter the 'More' stores to purchase the subject goods, associate the subject goods with the 'More' brand name, and, do not necessarily associate/connect the subject goods with the name of the Appellant. Accordingly, it is the 'More' trademarks which establishes a connection in the course of trade between the subject goods and the Appellant. The definition itself indicates that brand name is one which establishes the said connection with or without indicating identity of su
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s of the subject goods associate the subject goods with the 'More' brand name, and do not necessarily associate/connect the goods with the name of the Appellant. It is the 'More' trademarks which establishes a connection in the course of trade between the subject goods and the Appellant.
8. The ARA ought to have appreciated that there are several practical illustrations which would establish that a product is recognised in the market through its brand name and may not be directly associated or identified with the name of the manufacturer/brand owner even where such manufacturer/brand owner is a reputed company. The products are associated with the brand and not with the name of the company. Further, there would also be such illustrations where the product is identified with the name of the company. An illustrative list in this regard is provided. As evident, this strictly holds true in case where the product is eponymous to the manufacturer, which is not the case of the Appellant.
a.
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deal with the question as to whether the name of the manufacturer which is declared as per the statutory requirement can be construed to be a brand name. It is a settled principle of law that a judicial decision is an authority for what it actually decides and not for what can be read into it by implication or by assigning an assumed intention to the judges-
* Bhanagar University v. Palitana Sugar Mill (P) Ltd., (2003) 2 SCC 111- 'A decision, as is well-known, is an authority for which it is decided and not what can logically be deduced thereform. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. [See Ram Rakhi v. Union of India AIR 2002 Del 458 (db), Delhi Admn. (NCT of Delhi) v. Manohar Lal (2002) 7 SCC 222, Haryana Financial Corpn. v. Jagdamba Oil Mills (2002) 3 SCC 496 and Nalini Mahajan (Dr.) v. Director of Income Tax (Investigation) (2002) 257 ITR 123 (Del).]'
* Armaendra Pratap
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Ex. & Customs [1978 (2) E.L.T. J 350 (S.C.)] that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words.
10. It is also relevant to note that, in terms of the Exemption Notifications, to constitute a brand name, it needs to be established that the same has been purposefully used to indicate a connection between the goods and the person. Reliance in this regard is placed on the decision of the Hon'ble Supreme Court in the case of Commissioner of C. Ex., Hyderabad-IV v. Stangenlmmuno Diagnostics [2015 (318) E.L.T. 585 (S.C.)] wherein, relying on the decision of the Hon'ble Supreme Court in the case of Commissioner of Central Excise, Chandigarh-ll v. Bhalla Enterprises [2004 (173) E.L.T. 225 (S.C.)] it was inter alia held that 'the assessee would be debarred only if it uses on the goods in respect of which exemption is sought, the same/similar brand name with the intention of indicating a connection with the assessees goods and
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hat such a mark, symbol, design or name, etc. has acquired the reputation of the nature that one is able to associate the said mark, etc. with the manufacturer'. In the present facts, it is the 'More trademarks' which best answer this description, having been used over a period of time to acquire the reputation associated with the subject goods. Therefore, withdrawal of the said brand name would render the subject goods unbranded, and, mere mention of Appellant's name, in terms of statutory prescription, and, absent its demonstrated association with the subject goods, would not alter this position. Also, to this extent, the reliance placed by the Impugned Order on the decision of the Hon'ble Supreme Court in the case of Stangen (supra) is erroneous and misconceived. Whereas the Impugned Order rightfully observes that 'the applicant also has a family of customers purchasing from the More Stores and associating the brand with some quality standards', and, that 'the customers are aware of
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tive basis of the findings made in the Impugned Order, it is submitted that said observation is extraneous to the terms of the Exemption Notifications as the definition of the term 'brand name' therein neither includes a 'combination of colours' nor does it borrow the meaning of 'mark' from the Trade Marks Act. It is well established inter alia in terms of the decision of the Hon'ble Supreme Court in the case of Hemraj Gordhandas v. Assistant Collector of C. Ex. & Customs [1978 (2) E.L.T. J 350 (S.C.)] that in a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words.
13. It is settled law that the declaration of name of the company as per the statutory requirements would not amount to 'bearing a brand name'
14. The ARA has failed to appreciate that the issue involved in the present case was squarely covered by the decision of Hon'ble Supreme Court in Tarai Foods Limited v. CCEx. Meerut-II 2006 (198) E.L.T. 323 (S.C). Although the A
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Description of goods
Rate of Duty
(1)
(2)
(3)
(4)
20.01
Preparations of vegetables, fruit, nuts or other parts of plants including jams, fruit jellies, marmalades, fruit or nut puree and fruit or nut pastes, fruit juices and vegetable juices, whether or not containing added sugar or other sweetening matter.
2001.10
– Put up in unit containers and bearing brand name.
8%
2001.90
– Other
-Nil
As regards this case, it is relevant to note the following:
– The issue under consideration was the classification of goods under sub-heading 2001.10 of Chapter 20 of the Central Excise Tariff (where the conditions required to be fulfilled were, (i) that the product must be put up in unit containers, and (ii) the same must bear a brand name), or, sub-heading 2001.90 of the said chapter (which covered “others”)
– The assessee was engaged in the manufacture of vegetable preparation i.e. French Fries and Frozen foods. They had been using two
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“Under the Standard Weights and Measures (Packets Commodities) Act, 1977 every packet is required to bear thereon or on a label squarely affixed thereto a definite, plain and conspicuous declaration as to, inter alia, the name and address of the manufacturer (see Rule 6 & 10). In other words, unit containers would have to bear the name of the manufacturer. If the name of the manufacturer were to be a brand name then this would mean, that there would be no unbranded unit container at all in law and the distinctiveness of T.H. 2001.10 would be meaningless.
15. Furthermore the definition of the words 'brand name' shows that it has to be a name or a mark or a monogram etc. which is used in relation to a particular product and which establishes a connection between the product and the person. This name or mark etc. cannot, therefore, be the identity of a person itself. It has to be something else which is appended to the product and which establishes the link.
16. There is a value attac
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branded goods which is highly illogical. In fact in respect of the packaged goods, there are statutory requirements that the manufacturer's or packer's name and address should be indicated on the packages of the goods under the standards of Weights & Measures Act, 1976 and the rules made thereunder'
(ii). In the case of CCEx. v. Pepsi Foods Ltd., [2015 (322) ELT A325 (SC)]; the issue under consideration was whether the printing of the name of the brand owner, could be construed to make the package a branded product. The Hon'ble Supreme Court while taking note of the definition of 'brand name' (which is similar to meaning provided to the phrase under the Exemption Notifications), and the decision in the case of Tarai Foods (supra), upheld the decision of the Hon'ble Tribunal in the assessee's own case, CCEx v. Pepsi Foods Ltd., [2003 (156) E.L.T. 1013 (Tri. – Del.)] and in the case of Nirula and Company Pvt. Ltd. v. CCEx [2005 (186) E.LT. 412 (Tri. – Del.)], stating that mere pri
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n of 'brand name', by the Department. The Hon'ble Madras High Court while taking note of the definition of 'brand name' (which is similar to the meaning provided to the phrase under the Exemption Notifications) held that the superscription 'manufactured and packed by SVS & Sons' cannot be considered as a brand name or a trade name.
19. In addition to the above, reference is made to the following circulars:
(a) Circular No. 1031/19/2016-CX, dated 14th June 2016, which was issued as regards the levy of Excise duty on readymade garments and made up articles of textiles bearing brand name or sold under a brand name having retail sale price of Rs. 1,000 or more. The Board vide the said circular clarified that 'merely because the outlets (shop) of a retailer, from where readymade garments or made ups are sold, has a name, say, M/s. XYZ and Sons, the readymade garments or made ups sold from such outlet (shop) cannot be held as branded readymade garments or made ups and become liable t
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n Notifications redundant
21. In terms of the Exemption Notifications, exemption is admissible for goods other than those put up in unit container and bearing a brand name. Further the term 'unit container' is defined to mean 'a package, whether large or small (for example, tin, can, box, jar, bottle, bag, or carton, drum, barrel, or canister) designed to hold a predetermined quantity or number, which is indicated on such package'. In terms of the language employed, the requirement of goods being 'put up in unit container', and, bearing a 'brand name' would have to be cumulatively satisfied so as to exclude the corresponding goods from the purview of the exemption.
22. In terms of Section 18 of the Food Safety and Standards Act, 2006 ('FSSA') 'no person shall manufacture, distribute, sell or expose for sale or dispatch or deliver to any agent or broker for the purpose of sale, any packaged food products which are not marked and labelled in the manner as may be specified by regulation
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. Reliance in this regard is placed on the decision of the Hon'ble Supreme Court in the case of Bansal Wire Industries Ltd v. State of U.P. [2011 (269) E.L.T. 145 (S.C.)] wherein the Hon'ble Court laid down that it is a settled principle of law that the words used in the section, rule or notification should not be rendered redundant and should be given effect to. It is also one of the cardinal principles of interpretation of any statue that some meaning must be given to the words used in the section'. Reliance in this regard is also placed on the decision of the Hon'ble Bombay High Court in the case of Bharat Cottage Industries v. Union of India [1992 (59) E.L.T. 30 (Bom.)] wherein it was held that it 'is not permissible for the Court to treat the words of the exemption notification as a mere surplus'.
24. Availability of the subject goods only at More Stores would not render the subject goods branded for the purposes of the Exemption Notifications
a. The Impugned Order wrongly
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name was printed, and, was claiming benefit under the Small Scale Exemption Notification No. 1/93-C.E. dated 28th February 1993 ('SSI Exemption') in respect of some cookies sold loosely from the same retail counter. The question before the Hon'ble Supreme Court was 'whether the manufacture and sale of specified goods that do not physically bear a brand name, from branded sale outlets, would disentitle an assessee from the benefit of S.S.I. Notification'. In this context, the Hon'ble Supreme Court inter alia held that to determine whether a product bears a brand name, one needs to look into the environment and that that 'a specific, dedicated and exclusive outlet from which a good is sold is often the most crucial and conclusive/actor to hold a good as branded'. It has been further held that 'whether the brand name appears in entirety or in parts or does not appear at all cannot be the chief criterion; primary focus has to be on whether an indication of a connection is conveyed in the
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and other such factor', specifically considering that certain goods, which would otherwise be covered under the SSI Exemption Notification, would be 'incapable of physically bearing brand names'- 'Liquids, soft drinks, milk, dairy products, powders, edible products, salt, pepper, sweets, gaseous products, perfumes, deodorants etc.to name a few, are either liquids, gases or amorphous/brittle solids, making it impossible for the goods to be affixed with a brand name'.
d. In terms of the scheme of the applicable entries to the CGST Notification, it is evident that the same covers specified goods (i.e. cereals), and, in terms of the prescribed conditions, for falling outside the ambit of the said exemption, it is necessary that the goods are sold in a unit container which bears a brand name. It is abundantly clear in terms of the entries to the CGST Notification and the Annexure thereto that the condition to be examined is whether the unit container bears the 'brand name'. To this
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ion (ii)(a) printed on the unit containers he has foregone his actionable claim or enforceable right voluntarily'
Accordingly, the decision of the Hon'ble Supreme Court in the case of Australian Foods is not applicable to the facts of the present case. Also, to this extent, the finding in the Impugned Order, that 'the goods are being supplied through the More stores which is registered brand as on the 15th May 2017', is in excess of the conditions stipulated in the Exemption Notifications, which is only concerned with the nature of disclosures made on the unit container alone.
e. Further the decision of Hon'ble Supreme Court in the Australian Foods case (supra) is clearly distinguishable on facts and therefore not applicable to the present case. It is an admitted fact that, in Appellant's case, the More Stores, constituted under hyper-market and super-market formats, offer wide range of products to its customers viz. fresh fruits and vegetables, groceries, personal care, home care, g
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in its wisdom, rightfully cautioned that 'our observations must be limited to this notification and not supplanted to other laws with similar subject matter pertaining to trade names and brand names'. The Impugned Order has thus erroneously applied the findings of the Hon'ble Supreme Court in the case of Australian Foods, dealing with the SSI Exemption Notification issued under the Central Excise law, to the present case, without appreciating that said decision itself explicitly excludes its applicability to other laws even where such other laws deal with similar subject matter pertaining to trade names and brand names.
25. Declarations made on the package, using common/generic terms for indicating the quality of the product cannot be construed to be a 'brand name'
a. As stated, for some of the subject goods, the package would also bear a certain declaration by using common/generic words for the sole purpose of indicating the quality of the product so as to enable the customers
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of the goods or rendering of the service or other characteristics of the goods or service', shall not be registered. The definition of 'trademark' as provided in Section 2(zb) of the Trade Marks Act is broadly similar to the definition of the term 'brand name' under the Exemption Notifications to the extent it includes a mark or a name that indicates 'a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark'. In view of the same, a name, which merely indicates quality parameters of the goods, should also not be construed to be a 'brand name'.
c. Accordingly, the declarations inter alia using common/generic terms viz. Value', 'Choice' and 'Superior', for reflecting the quality of the subject goods to be sold under Stream 1, cannot be construed to be 'brand name' for the purpose of the Exemption Notifications. The supply of subject goods would therefore attract GST at 'Nil' rate in terms o
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in support of their claim and also the judgments relied upon by the AAR to distinguish the same from their matter. The Advocates argued that in the judgments cited by AAR, it was never subject matter of any judgment that whether placing name of manufacturer as statutory requirement would amount to brand name. They stated that products should be identified and asked for by the name of brand name. In their case. More is the brand which they propose to remove from the packages and also no one is going to More Stores to buy only More products. Reputation is attached with brand More and not with the name of the manufacturer. Regarding case of Australian Foods relied by AAR, they stated that Court had limited observations in the matter and there is no need to look into the environment in their case in view of the GST notification. The Advocates confirmed that the Appellant is not raising the issue about point no. 2 i.e. the cases where the goods of stream will be sold by mentioning name of t
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sed to be sold under stream 2 i.e. where the goods of third parties were proposed to be marketed by the Appellant. Therefore, the issue before us to decide is :
(i) Whether mention of name of the Appellant on the goods, as required by FSSAI regulations and Legal Metrology Rules, amounts to brand name or not.
(ii) Whether use of general words like 'Choice', 'Value' or 'Superior' on the goods to be sold in 'More stores would render the said goods as branded or not.
29. The notification no. 02/2017-Central Tax (Rate) dt. 28 June 2017 (and corresponding notifications under SGST Acts and IGST Act) is the central point of discussion here, exempting as it does the goods in question from whole of GST with the exclusion of those put up in unit containers and bearing a registered brand name. During the hearing proceedings, the Advocates for the Appellant had drawn our attention to the fact that to discourage the circumvention of the conditions of the notifications by the ploy of d
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oods can be termed as branded as per the proposed packaging strategy of the appellants. The practice of branding is thought to have begun with the ancient Egyptians who were known to have engaged in livestock branding as early as 2700 BCE. Branding was used to differentiate one person's cattle from another's by means of a distinctive symbol burned into the animal's skin with a hot branding iron. If a person stole any of the cattle, anyone else who saw the symbol could deduce the actual owner. Over time, the practice of branding objects extended to a broader range of packaging and goods offered for sale. In modern times the term has been extended to mean a strategic personality for a product or company, so that 'brand' now suggests the values and promises that a consumer may perceive and buy into. A brand, as we understand the term now, is a name, term, design, symbol,': or other feature that distinguishes an organization or product from its rivals in the eyes of the customer. Brands ar
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hat is to say, a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a connection in the course of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person.
In view of the above, there is no bar on the name of the manufacturer to be a brand name as long as it is used in relation to such specified goods for the purpose of indicating a connection in the course of trade between such specified goods and the person using such name. So, the real test here is the connection between the specified goods on which such a name is being used and the person using such name in the course of trade.
32. In the instant case, the goods in question are being sold under the brand 'More' in exclusive 'More Stores' and also bearing the registered logo of 'Aditya Birla Retail'. Therefor
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r licence agreement. Thus the goods are being identified by consumers/customers by names 'More' and 'Aditya Birla Retail'. As confirmed by the Appellant, huge investment and time is involved in establishing the brands by way of consistent advertising and marketing to register in the minds of consumers/customers. There is accordingly a lot of value attached to such brands which hire some part of Customer's mind to differentiate the goods from rival manufacturers/brands.
33. The Appellant has largely depended on the Apex Court judgment in the case of Tarai Food Ltd. [2006(198) ELT 323(SC)] to claim that the manufacturer's name on packets is not sufficient to classify the same as branded. We would like to reproduce the para 11 of the said judgment to show that facts of the case before us are different from the facts and circumstances of the case before Hon'ble Supreme Court:
“There is a value attached to the brand name, a value which has been recognized in the tariff entry by providing
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shall now proceed to explain. The Appellant has proposed to remove the two trade marks from the present packing of the goods, maintaining the environment of the sale of goods intact, that is to say that the said goods will continue to be sold through exclusive 'More' stores. The style, color and nature of packing will also remain unchanged, which is identified by the customers with the 'More' brand. Even the customer-care email address and website address bears the 'More Stores' name, and all billing shall be in the name of 'More Stores'. The sale bills issued to the customers continue bearing the registered trade mark of “MORE”, which gives satisfaction to the customer that the said goods, even without showing brand names of 'More' and 'Aditya Birla Retail' on the packages, still enjoy the benefit of the brand 'MORE'. The Appellant has also proposed to retain words 'CHOICE', 'VALUE' or 'SUPERIOR' on some of their goods claiming that same denote the quality of the goods and cannot be r
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ng the manufacturer's name on the packages, albeit as per statutory requirements, the Appellant is taking advantage of their registered brand, the logo of which they have opted to remove from the said goods. The Appellant has argued that if manufacturer's name on the package, declared as per statutory requirements under FSSAI and or Legal Metrology Rules, is accepted as brand name then every packaged commodity will be considered as branded. This is not true in every case. Instead, if every reputed manufacturer whose brand name is covered in their name can just remove their brand from the package and avail the exemption of the said notification, no one would be covered under GST. For example, M/s. Patanjali Ayurved Ltd. selling Cow Ghee under the registered brand name 'Patanjali' were to remove the said brand from the package and sell the same under manufacturer's name, this will not render the said goods unbranded, because the customer will identify the said goods with the brand 'Patan
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oods, the Appellant still enjoys the advantage attached to the said two brand names and thus the benefit of exemption cannot be extended to them. The mention of name 'Aditya Birla Retail Limited' on the packages, as manufacturer of the said goods clearly indicates the connection between the said goods and Aditya Birla Group in the course of trade as they are already having a registered brand in the name of 'Aditya Birla Retail' which was being displayed on the said goods till now. The customers, by reading the name on the packages as 'Aditya Birla Retail Limited', would be in a position to identify the said goods as belonging to the reputed brand 'Aditya Birla Retail' even in absence of the logo of that brand on the goods. The purpose of Appellant for taking advantage of their reputed brand, even in absence of its logo on the goods, seems to be fulfilled by mention of words 'Aditya Birla Retail Limited'. Additionally, the use of specific words like 'Choice', 'Value,' or 'Superior', whi
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be considered as bearing the brand of 'More'. The 'bearing' a brand as mentioned in the said notification and vehemently argued by the Appellant, does not necessarily mean affixing on the unit container/goods. The notification does not provide specifically about the affixing the said brand on the goods itself and Hon'ble Apex Court has ruled, in similar case, that physical manifestation of brand name is not compulsory on goods. A harmonious reading of the notification and Supreme Court judgment makes it clear that the said goods in the instant case are branded even if the registered brand name logos are removed from the same.
(b) Astra Pharmaceuticals (P) Ltd. [1995 (75) ELT 214 (SC)], has been clarified and distinguished by three member bench of Hon'ble Apex Court in the judgment of M/s Grasim Industries Ltd.,[2005 (183) ELT 123 (SC)], wherein the mention of a name of company on the packaging was considered as branding of those goods. This judgment has been relied by the AAR an
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Ltd., which we have already discussed. The facts and circumstances of the case of M/s Nirula and Company Pvt. Ltd. [2005 (186) ELT 412(Tri. Delhi)] are same as of Tarai Foods and Pepsi Foods and hence distinguishable.
(c) In the case of West Bengal Chemical Industries Ltd. [2006 (200) ELT 68 (Tri. Kolkata)], the issue was regarding the goods being 'Marketed by' which is not the case here as the Appellant has already withdrawn the question regarding goods to be sold by them as Marketed by them.
(d) Kalvert Foods India Pvt. Ltd. [2011(270) ELT 643(SC)] pertains to the distinction between House Mark and Brand Name and relies on the judgement of Astra Pharmaceuticals and Tarai Foods Ltd., thus distinguishable on facts.
(e) In case of Stangenlmmuno Diagnostics, [2015(318) ELT 585(SC)], the issue pertained to the use of brand name of other person. Two persons were using same logo/trademark simultaneously.
(f) Bhalla Enterprises, [2004(173) ELT 225(SC)], same bra
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extend the benefit of the said exemption notification to the Appellant by liberal construction of the said notification. In this, we are fortified by following judgments of Hon'ble Supreme Court-
(a) Rajasthan Spg. and Wvg. Mills Ltd. v. Collector of C. Ex. Jaipur[1995(77) ELT 474(SC)] –
“Exemption notification construable strictly – Liberal construction which enlarges the term and scope of the notification not permissible nor extended meaning assignable to exempted item”
(b) B.P.L Ltd. v. COMMR. Of C. Ex. Cochin- II, [2015 (319) ELT 556(SC)]-
“Interpretation of statutes – Exemption notifications – They have to be interpreted strictly – It is assessee to prove that he fulfills all conditions of eligibility under such Notifications.”
The above case was affirmed in 2015 (324) A 79 (Supreme Court).
40. The two circulars issued by CBEC, now CBIC, relied upon by the Appellant, are not relevant in the matter as one pertains to the deemed manufacture and liability to excise
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an be identified with the brand 'More' by the use of these words.
Accordingly, we pass the following order:
ORDER
* In respect of point (i) of Prayer to the grounds of Appeal, we do not find any infirmity with the ruling given by Authority for Advance Ruling in this behalf for Question No. 1 posed before them.
* In respect of point (ii) of Prayer to the grounds of Appeal, we hold that the use or words 'VALUE', 'CHOICE' or ' SUPERIOR' on the proposed packing, without altering the surrounding environment to take advantage of brand 'MORE', would be construed as 'brand name' for the purpose of Exemption Notification.
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1. For the purpose of the determination of the questions under this Appeal, which would require reference to be made to the Exemption Notifications, the relevant entries under the CGST Notification have been considered in this application, which are identical to the corresponding entries under the SGST Notification and the IGST Notification.
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Sutherland Global Services Pvt. Ltd. Versus Assistant Commissioner of Service Tax, The Commissioner (Appeals) Office of the commissioner of GST & Central Excise (Appeals-II)
Service Tax
2018 (8) TMI 1405 – MADRAS HIGH COURT – TMI
MADRAS HIGH COURT – HC
Dated:- 7-8-2018
W.P.No.20219 of 2018, W.M.P.No.23686 of 2018
Service Tax
K. Ravichandrabaabu, J.
For the Petitioner : Mr.Joseph Prabakar
For the Respondents : Mrs.R.Hemalatha, Senior Standing Counsel
ORDER
Mrs.R.Hemalatha, learned Senior Standing Counsel takes notice for the 1st and 2nd respondents and by consent the main Writ Petition itself is taken up for final disposal.
2. This Writ Petition is filed challenging the order in original dated 25.01.2017 passed by the first respondent and the Order in Appeal dated 28.02.2018 passed by the second respondent.
3. Heard Mr.Joseph Prabakar, learned counsel appearing for the petitioner and Mrs.R.Hemalatha, learned Senior Standing Counsel appearing for the responden
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oner explained the delay in their application for condonation of delay, filed before the second respondent. It is stated in the said application that person in charge of handling the service tax matter in the petitioner Company, quit the company and that the said person who had received the order in original had misplaced the same. It is also stated that the newly appointed person who handled the service tax matters subsequently discovered that the appeal against the order in original was not filed. Therefore, the petitioner filed the Appeal with a delay of 13 days.
5. The Appellate Authority, however, refused to entertain the Appeal only on the reason that the same was filed beyond the period of limitation and the explanation given by the petitioner is not satisfactory. Thus, he rejected the Appeal on the ground of limitation, without going into the merits of the matter. Now, both the orders are put to challenge before this Court.
6. Perusal of the order passed by the first responde
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of limitation cannot be sustained, especially, when the petitioner has stated the reasons for filing such appeal with 13 days delay and when such reasons are not found to be either false or imaginary. In any event, as the delay is only 13 days, the second respondent ought to have condoned the delay and considered the matter on merits.
8. Therefore, without expressing any view on the merits of the contentions raised by the petitioner and on the order passed by the first respondent, this Writ Petition is allowed in part only by setting aside the order of the second respondent made in Appeal No.59/2018 dated 28.02.2018. Consequently, the matter is remitted back to the second respondent for deciding the said Appeal on merits and in accordance with law, as this Court has not expressed any view on the merits of the matter. Such exercise shall be done by the second respondent within a period of eight weeks from the date of receipt of a copy of this order. Consequently, miscellaneous petition
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Jai Laxmi Venkatesh Granites Private Limited Versus The Assistant Commissioner of Commercial Taxes (SGST), Goods and Services Tax Network, State of Tamil nadu And Union of India
GST
2018 (9) TMI 686 – MADRAS HIGH COURT – 2018 (19) G. S. T. L. 25 (Mad.)
MADRAS HIGH COURT – HC
Dated:- 7-8-2018
W. P. No. 8449 of 2018 And WMP. Nos. 10394 & 10395 of 2018
GST
Mr. K. Ravichandrabaabu J.
For the Petitioner : Mr.Mohammed Shaffiq
For the Respondents : Ms.G.Dhana Madhri Government Advocate (Tax), for R1 & R3 Mr.V.Sundareswaran Senior Panel Counsel, for R2 & R4
ORDER
This writ petition has been filed to call for the records and quash the impugned communication of the second respondent dated 09.02.2018 and to direct the first a
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y were informed through the impugned communication that the functionality of migration through FORM GST REG-26 has been closed and thus, the petitioner has to apply for new registration under the provisions of GST Act. Therefore, the present writ petition was filed and entertained by this Court on 10.04.2018, also by granting an interim order that no action shall be initiated against the petitioner, by treating them as an unregistered dealer. Thereafter, the matter was adjourned on several occasions and finally posted today for further hearing.
3. The learned Government Advocate (Tax) for the respondents 1 and 3 produced a copy of the communication dated 31.07.2018 issued by the Assistant Commissioner (ST), Krishnagiri to the Joint Commiss
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said Nodal Officer, provided, such application is filed on or before 31.08.2018.
4. The learned counsel for the petitioner submitted that such application will be filed with necessary details before the concerned Nodal Officer, by tomorrow (i.e. 08.08.2018) itself. He further prayed that such Nodal Officer may be directed to consider such application and pass appropriate orders without loss of further time.
5. Heard both sides.
6. There is no dispute to the fact that the petitioner is a registered dealer previously under the Tamil Nadu Value Added Tax Act, 2006 and Central Sales Tax Act, 1956. However, after introduction of GST and during the process of migration into CGST, it appears that some mistake or short fall of information has c
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M/s. Eveready Industries India Ltd. Versus Commissioner of GST & Central Excise Chennai
Central Excise
2018 (9) TMI 1653 – CESTAT CHENNAI – TMI
CESTAT CHENNAI – AT
Dated:- 7-8-2018
Appeal No. E/247/2012 – Final Order No. 42215/2018
Central Excise
Ms. Sulekha Beevi C.S., Member (Judicial) And Shri V. Padmanabhan, Member (Technical)
Shri Santhana Gopalan, Advocate for the Appellant
Shri A. Cletus, Addl. Commissioner (AR) for the Respondent
ORDER
Per Ms. Sulekha Beevi, C.S.
The appellants are manufacturers of dry cell batteries and are availing the facility of CENVAT credit of duty paid on inputs, capital goods and input services. They have corporate office located at Kolkata. Apart from their unit at Thiruvottiyur
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ENVAT Credit Rules, 2004. Show cause notice was issued proposing to disallow the CENVAT credit and for recovery of the same along with interest and for imposing penalties. After due process of law, the adjudicating authority confirmed the demand along with interest and imposed penalties. Hence this appeal.
2. On behalf of the appellant, ld. counsel Shri Santhana Gopalan submitted that the main issue is whether the appellant is eligible to avail CENVAT credit distributed by it to the units though the amounts so distributed was not proportionate to their turnover. That the said issue is decided in the case of Commissioner of Central Excise Vs. Dashion Ltd. – 2016 (41) STR 884 (Guj.) and that the department vide its Circular No. 10632/2018-CX
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EARTHLINE SERVICES PRIVATE LIMITED Versus STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, THIRUVANANTHAPURAM
GST
2018 (10) TMI 1133 – KERALA HIGH COURT – TMI
KERALA HIGH COURT – HC
Dated:- 7-8-2018
W. P. (C) No. 25972 of 2018 (V)
GST
MR DAMA SESHADRI NAIDU, J.
For The PETITIONER : ADVS.SRI.SUKUMAR NAINAN OOMMEN, SRI.SHERRY SAMUEL OOMMEN AND SRI.RAHUL IPE PRASAD
For The RESPONDENTS : SENIOR GOVERNMENT PLEADER SRI T.A.UNNIKRISHNAN GOVERNMENT PLEADER DR.THUSHARA JAMES
JUDGMENT
The petitioner, a Private Limited Company, is a dealer under Kerala Value Added Tax Act, 2003 (KVAT Act). Faced with the notice dated 02.06.2014 under Section 25(1) of the KVAT Act, it has filed this writ petition. It sought the following
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aside the impugned 'Posting Notice' in Exhibit P1.
iv. Issue such other and further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case;
v. Award costs to the petitioners”
2. A learned Division Bench of this Court in M/s. Cholayil Pvt. Ltd v. The Assistant Commissioner (Assessment)1 has ruled on the question of limitation. Now, both the learned Counsel agree that the issue of limitation raised in this writ petition thus stands squarely answered-and in the petitioner's favour, at that.
3. Once a lis can be disposed of, and a grievance can be redressed, on the statutory adjudication, the other issues, especially involving constitutional validity, need not be addressed. The
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In Re: M/s. Maheshwari Stone Supplying Company,
GST
2018 (12) TMI 1274 – APPELLATE AUTHORITY FOR ADVANCE RULINGS, HYDERABAD TELANGANA – 2019 (20) G. S. T. L. 408 (App. A. A. R. – GST)
APPELLATE AUTHORITY FOR ADVANCE RULINGS, HYDERABAD TELANGANA – AAAR
Dated:- 7-8-2018
AAAR/01/2018 (A. R. ) A. R. Appeal -No. AAAR/01/2018
GST
SHRI V. ANIL KUMAR AND BANKEY SHR BEHARI AGRAWAL MEMBER
A.R. Appeal -No. AAAR/01/2018
Dated: 07th August, 2018
ORDER-IN-APPEAL NO. AAAR/01/2018 (A.R.)
(Passed by Telangana State Appellate Authority for Advance Ruling under Section 101 (1) of the Telangana Goods and Services Tax Act, 2017)
Preamble
1. In terms of Section 102 of the Telangana Goods & Services Tax Act, 2017 (“the Act”, in short), this Order may be amended by the Appellate authority so as to rectify any error apparent on the face of the record, if such error is noticed by the Appellate authority on its own accord, or is brought to its notice by the concerned officer, the juri
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f Section 101 has been obtained by the appellant by fraud or suppression of material facts or misrepresentation of facts, it may, by order, declare such ruling to be void ab-initio and thereupon all the provisions of this Act or the rules made thereunder shall apply to the appellant as if such advance ruling has never been made.
* * * * * *
1. The subject appeal has been filed under Section 100(1) of the Telangana Goods and Services Tax Act, 201 7 (hereinafter referred to as “TGST Act, 2017” or “the Act”, in short) by M/s. Maheshwari Stone Supplying Company, Tandoor, Vikarabad District having GSTIN 36ABNPS1 863M1ZX (hereinafter referred to as M/s. MSSC /the appellant). The appellant had earlier filed an application under Section 97 (1) of the Act before the Telangana State Authority for Advance Ruling (“TSAAR” or “Authority” or “lower authority”, in short), seeking an Advance Ruling with regard to classification of goods viz., “Polished / Processed limestone slabs”. The said applicat
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order by appellant, the appeal is found to be filed within prescribed time,
II. Brief Facts:
3.1. The appellant had initially filed before the TSAAR an application for Advance Ruling, in the prescribed Form GST ARA-01, extracts of which are reproduced hereunder:
“Nature of activity:
“12(1)1: Description in brief: We are a SSI unit with an annual TO of under 1.5 Cr. Our main activities include; to bring rough limestone slabs (a minor mineral) which are by nature uneven in thickness ranging from 15 to 35 mm (or so), to our processing unit and POLISH it's one of the suitable surface with simple table polish machine and further cut it to square or rectangle shape on a table cutting machine. Out of two processes, we also opt for only one process called CUT on these stones. Some other kind of simple processes like CALIBRATION, TUMBLING etc. are also undertaken. But a stone SLAB generally do not need more than two processes before ready for selling into the market. After any kind of the
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re” as mentioned at the start of column of 5% ?
15.3 Statement of relevant facts having a bearing on the questions raised:
“Very recently The GST Council in its GUWAHATI meeting held on 10/11/2017 had reduced the GST on “Marble/Granite other than blocks” from 28% to 18% effective from 15/11/2017. (Kindly see Notification no. 41/2017 dated 14/11/2017 issued to this effect). We draw your kind attention to the description of commodity in particular column mentioned there under, and without writing any adjectives related to any kind of processes such as POLISH, CUT etc. it is still quite evident that they have not been taken out of Chapter 25. Please refer to HSN Code mentioned for Marble/Granite in the said notification of Dated 15/11/2017 whose first four digits are 2515/2516. It does clearly mean that even without mentioning of any kind of processes such as CUT or POLISH etc. it can be presumed that all kinds of processing activities done on these stones were allowed in the Chapter 25
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are allowed under HSN Code 2515/2516 in written form in the description column but our process is POLISH & CUT and to clarify this doubt the present Advance ruling is filed.
There are two kinds of stones available in limestone category. One is BLOCK and the other is SLAB. SAWN is a process performed on Block to derive uniform thickness TILES which are called a CREAM like material and our SSI unit don't do that process and sawn on blocks is mostly practiced in KOTA region of Rajasthan and also in Marble/Granite Industry worldwide.
Whereas surface POLISH is a process which is performed on directly brought rough stone SLABs (minor mineral) of uneven thickness and it is called BUTTERMILK like material which we usually undertake in our small scale industries. The expenses incurred on a sawn TILE is higher than combined processes of POLISH & CUT done on a SLAB of same size. In economic terms also any of the two processes combined together cannot match a single process of SAWN which is allo
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s which have been written clearly in description under HSN Code 2515/2516 and POLISH had not been written which is also a kind of process and the combined effect of CUT+POLISH or any two kinds of processes are less complex and less expensive than a single process of SAWN.
Hardly not even a single processing unit engaged in LIMESTONE SLABs in our region was falling under the jurisdiction of Excise Duty (ED). Hon'ble SC while dealing with many appeals and cases upheld that POLISH & CUTTING done on a Stone slab cannot be equated to manufacturing, hence such stone slabs are not liable to ED. Under VAT regime our “Polished limestone slabs” were charged 5% of Tax. Hence when no ED was charged and VAT was only 5%, then our commodity shall definitely fall in Chapter 25 only, whose GST is also 5% for Limestone category, it is also noteworthy for the competent authority to note that ROYALTY is a kind of Tax as decided by majority of Judges of SC so far and the matter is still sub-judice before
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the competent authority by bringing small pieces of sample stones so that it will become easier for the authority to decide the HSN Code of our commodity on merits. Further clarifications if any will be submitted at the time of arguments.
3.2. The appellant filed additional submissions before the TSAAR vide a letter dated 05-01-201 8, as follows:
“Our further humble submissions are mentioned herein below substantiating that Processed/Polished Limestone slabs cannot be taken out of Chapter 25:
1. A downloaded list (four in no.s) of Rough as well as Processed Kota, Marble and Granite stones exported to different countries from India under Chapter & HSN Code: 25 is enclosed here with as ANNEXURE-A1 as further proof substantiating that polish stone slabs have not been taken out of Chapter 25.
2. A bunch of newspaper clippings clearly stating that how GST/FITMENT Committee, of late, realized its mistake and expressing its concern having wrongly taken into consideration of EXCISE DUTY
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s, surface polish is the only process done that too with much inferiority and simplicity and very less expensive in comparison to Marble/Granite's chain of processing.
4. GST Council says “GST brings good things of great joy for small tax players.” And literally we are small tax players and our good things of great joy can be retained; only when our commodity do not be taken out of Chapter 25 or be assured from competent authorities that it falls in 5% column of GST in light of all the submissions made by us here in this advance ruling case.
5. Our Turn Over is below 1.5 Cr, even if it is in between 1.5 to 5 Cr., then also it is quite enough for us to use only two digit HSN Code as per rules. And Chapter 251s (HSN Code 25) title is most appropriate of all for our polish stone which is mentioning STONE in its title. Whereas Chapter 68's title is ARTICLES OF STONE. Article is defined as “A part or segment of something joined to other parts, or, in combination, forming a structured se
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hat other products coming under 6802 can have a place in Chapter 25. (See ANNEXURE-A3).
9. Tandur rough stones are stones of less value in the market and the marketable quality of these stones is enhanced by polishing and cutting. But the substance of the material is not altered. The stone slab is made more presentable and attractive for the benefit of the end users of low cost housing needs and it cannot be said that the activity is a manufacturing activity. ”
10. In the Hyderabad meeting of GST Council held on 9/09/2017, we saw that much complex processes like “Stone inlay work” (HSN Code 68), have been brought down to 12% from 28%, then POLISH process done on a directly brought rough slab is very less complex but much easy, in comparison to above mentioned. In fact Polish stone slab is a kind of Raw material out of many used for “Stone inlay work”. In this way also it is quite appropriate to keep polished limestone slabs in Chapter 25 . . .”
3.3. The appellant was heard in pers
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ons are attached here with and important matter marked as rounded with ink so that both of you can understand the essence before coming to conclusion. Based on this single point if this Hon'ble Advance Ruling authority can give the ruling that “Polish stones in slab” form are to be classified under HSN Code 25 only then there is nothing wrong in it and nobody can question also.”
3.4. Vide a further letter dated 1-2-2018, the appellant had submitted as follows:
“This is to inform you that in Note 1 of Chapter 25, the word LEVIGATED is allowed on mineral products and I have gone through the Oxford dictionary meaning of LEVIGATE which had been taken from Latin word LEVIGAT, and the literal meaning of the same is “made smooth, polished”. In this context also it is becoming so clear that the process of POLISH is allowed on surface of rough limestone slabs in Chapter 25 itself@ GST 5%.
secondly there allowed many processes in Chapter 25 under GST 5%, such as CRUSHING, POWDERING etc. on ha
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o in Marble/Granite Industry worldwide._
b) That surface POLISH is a process which is performed on directly brought rough stone SLABs (minor mineral) of uneven thickness and it is called BUTTERMILK like material which they usually undertake in their small scale industries. The expenses incurred on a sawn TILE is higher than combined processes of POLISH & CUT done on a SLAB of same size. In economic terms also any of the two processes combined together cannot match a single process of SAWN which is allowed in written form under HSN Code 2516. Selling price wise and quality wise also there is a huge difference in these both varieties of stones and their cheap polish slabs are mostly used in low budget housing needs. These cheap quality Polish stones are also a last resort for a customer to select from.
c) Processed or Mirror Polished Marble/Granite SLABs have also not been taken out of Chapter 25 which is evident from the Notification No. 41/2017 issued after GST Council's Guwahati m
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VAT regime their “Polished limestone slabs” were charged 5% of Tax. Hence, when no ED was charged and VAT was only 5%, then their commodity shall definitely fall in Chapter 25 only, whose GST is also 5% for Limestone category it is also noteworthy for the competent authority to note that ROYALTY is a kind of Tax as decided by majority of Judges of SC so far and the matter is still sub-judice before a larger bench now. And their commodity in its raw form suffers additional juicy fiscal burden in the form of ROYALTY at the hands of Mining authorities of State Government. The process of expensive and luxurious category Marble/Granite is very complex in comparison to their Polish slabs; to such an extent that processing expenses incurred only on SAWN process of Granite/Marble is 2-4 times higher than the entire material cost of Processed Limestone slab itself of same surface area.
e) Hence, finally it was submitted that at any angle it is appropriate that their commodity called “Polished
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stone slabs” are classifiable under chapter 25 of the GST tariff, we would like to draw attention to the Explanatory notes to the Harmonized Commodity Description and coding system:
* Section V of the HSN deals with classification of Mineral products and in Chapter 25 classification of Salt; sulphur; earths and Stone; plastering materials, lime and cement are dealt with.
* As per the chapter notes to chapter 25, the headings of this chapter covers mineral products only in the crude state. Minerals which have been otherwise processed (e.g., made up into articles by shaping, carving etc,) generally fall in latter chapters (for example, chapter 28 or 68).
7. The heading 25.15 covers Marble, Travertine, Ecaussine and other Calcareous Monumental or Building stone of an apparent specific gravity of 2.5 or more and Alabaster whether or not roughly trimmed or merely cut and is restricted to the stones specified, presented in the mass or roughly trimmed or merely cut, by sawing or otherwis
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d after quarrying, to form blocks or slabs, still having some rough, uneven surfaces. This working involves removing superfluous protuberances by means of hammer or chisel type tools.
> This subheading does not cover blocks or slabs which have been cut to a rectangular (including square) shape.
9. Similarly, the subheading explanatory notes for subheading 2515.12 are given below:
> To fall in this subheading, the blocks and slabs which have been merely cut by sawing must bear discernible traces of the sawing (by wire strand or other saws) on their surfaces.
10. The heading 25.16 covers Granite, Porphyry, Basalt, sandstone and other monumental or Building stones, whether or not roughly trimmed or merely cut, by sawing or otherwise into blocks or slabs
> The stones of this heading may be shaped or processed in the same ways as the stones of heading 25.15 (including building limestone or Portland stone) and that stones in shapes identifiable as road or paving setts, flagstones or
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tones which have undergone the process of polishing are not classifiable under chapter 25, we would like to draw our attention to the Explanatory notes to heading 68.02 which were reproduced below for ease of reference:
> This heading covers natural monumental or building stone (except slate) which has been worked beyond the stage of the normal quarry products of chapter 25.
> The heading therefore covers stone which has been further processed than mere shaping into blocks, sheets or slabs by splitting, roughly cutting or squaring by sawing(square or rectangular faces).
> The heading thus covers stone in the forms produced by the stone-mason, sculptor, etc., viz:
(A)……..
(B) Stone of any shape (including blocks, slabs or sheets), whether or not in the form of finished articles, which has been bossed (i.e., stone which has been given a “rock faced” finish by smoothing along the edges while leaving rough protuberant faces), dressed with the pick, bushing hammer, or chisel,
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Tariff.
15. The issue has been examined with reference to the provisions of the CGST/TGST Act, 2017 and the Rules made there under and the notifications issued till date; and the Advance Ruling is given as under: –
“Polished/Processed limestone slabs” are correctly classifiable under heading 6802 of the GST Tariff.
The application filed by M/S Maheshwari Stone Supplying Co., Tandur, Vikarabad, is disposed accordingly”.
IV: Appeal filed by the Appellant, Personal Hearing & Further submissions :
5.1. Against the above Advance ruling Order, the appellant filed the present appeal on the following grounds:
“..We have received the copy of order no. 2/2018 of AAR on 17/04/2018 by regd. post which is enclosed here with as ANNEXURE-AAI.
We are a tiny & SSI unit involved in processing of limestone slabs. In any of the processing activity at our unit, a rough stone slab brought as a raw material always remains a stone slab only even after processing and the morphology of slab doesn't ch
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s bunch of ANNEXURE-AA2 along with above statement in opening paragraph of this submission shall be treated as “The facts of the case” under Serial no. 14 of the Appeal form GST ARA-02.
6(15). The Grounds of Appeal under serial no. 15 of the said form are as under:
First of all we are very much confused with Customs tariff Act being taken as the base for interpretation of rules and explanatory notes for classification of goods in domestic market. While in May 2017 it was announced by all the heads of concerned GST that the Rate of ED coupled with VAT had been fixed the rate of a product under GST. Then instead of Customs, the Excise Tariff could have been taken as a base. There is huge a difference in Chapter notes of Customs & Excise for same Chapter, which can change the meaning, definition and interpretation of a product/commodity. Hence it is becoming very difficult for us to digest this fact of contradictory statement.
The AAR had not taken all the submissions made by us int
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erived without bringing a BLOCK to a factory for splitting by subjecting to SAWN or CUT processes which are highly expensive than mere POLISH+SIZING combined together done on our Rough limestone slabs. If the AAR/GST is so particular about WORKED definition to be only interpreted for heading 6802, then why “Marble/Granite other than blocks” which are also WORKED have been given a place in Chapter 25 is our question?
2. The GST council while rolling it out said that they bring “Good things of great joy for small tax players.” Can this AAAR explain us how good things of great joy can be brought for us when our processed stone's Tax rate which was 5% under VAT regime had suddenly been increased to 18% under GST as per AAR's ruling of classification of HSN 6802?
3. We are of the strong view that for domestic trade; norms of Excise tariff act shall be taken into consideration and not that of Customs which deals mainly with IMPORTATION of Goods.
4. If Excise were taken as a base, then
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hus it is once again very clear that whether the raw or finished, our goods is unchanged either in Nature, description, purpose & usage. The AAR had forgotten this aspect to consider before entering into explanatory notes and interpretative rules.
5. It is evident that the AAR had forgotten the fact that Explanatory notes and interpretative rules for classification under Customs have no legal backing but of persuasive value and AAR had taken it as a base to define commodity of Processed limestone slabs which is uncalled for and without merits. Even when a classification of a product takes place under general interpretation rules, the trade parlance of the product must be checked first while classifying the product and not its technological manipulation. Where the product is classified on the very first level, then there is no need to drill down further in the strata below.
Whether RAW or FINISHED our stones are called STONES, BUILDING STONES, FLOORING STONES in the market but not W
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I in nature and throwing a mineral product called processed limestone slab of these SSI units in high bracket of GST in the name of HSN classification will definitely kill this industry in longer run or create a kind of friction amongst the trading community and concerned department or give fake invoice selling mafias to crop up or create an unhealthy competition amongst the industrial fraternity.
8. The AAR instead of relying on legal backing aspects such as describing heading of HSN with Chapter notes etc. had relied upon non-legal backing aspects such as explanatory notes and interpretative rules in deciding the classification of processed limestone slabs which is not correct. First they could have exhausted the legal backing aspects of Chapter notes and if they found any ambiguity then they might have entered into explanatory notes and interpretative rules. Even Chapter note 1 of both customs & excise permitting that mineral in crude form undergone the processes such as mechanica
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ORKED? If GST is saying as in heading 6802, then “MARBLE/GRANITE other than BLOCKS” as mentioned under 18% GST column of Chapter 25 (heading 2515/2516) are also to be called as WORKED only. Because a block without being brought to the factory and splitting it with a highly expensive processing machine, this is not possible. More over a BLOCK is being converted into TILES/SLABs of even thickness.
It does clearly mean that NATURE, DESCRIPTION, PURPOSE & USAGE have completely been changed and even after that it had been retained in Chapter 25 only!!! A block is no longer remained a Block but split into tiles/slabs thus changing its shape and usage.
12. Even there are many Excise judgments for Polished Marble/Granite not taking them out of Chapter 25. One such being in case of Classic Marble Company Pvt. Ltd. Vs Commissioner of Central Excise & ST., Vapi in 2013(11) TMI 384 – CESTAT Ahmedabad delivered in Nov 2013, where it was held that Polished Marble/Granite cannot be taken out of C
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all stone processing industries in Tandur belong to SSI category and even if one or two falls in medium scale, they are of EOU category belonging to politically very strong people who by exporting their processed material derive lot of benefits in the form of various kinds of incentives from Govt. For them or him it doesn't matter whether HSN is 6802 or 2515/2516. In these circumstances the point we want to stress before this AAAR is in entire Telangana region not a single limestone slab processing industry was either falling under excisable goods category nor Govt, earned a single paisa towards ED under VAT regime. When there was no gain in ED and VAT was only 5% even for processed slabs, then on what basis the AAR/GST Council is increasing our Tax base to 18% in the name of heading 6802? It is also not proper to take EOU as a benchmark in fixing the GST rate for our commodities, because there in EOU not only chain of value addition would be very high and more but also lot of transfor
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ind of favour extended to Corporate manufacturers who are financially so sound? The funny thing is MRP for each water bottle under both regimes remained same as Rs. 20/- on lower side and Given the fact of daily sales of water bottles in India, the Govt, is at a net loss of around INR 2000 Crores per annum. And this amount is very smartly entering into the pockets of financially well settled corporate houses, where as no benefits had been passed on to consumers. On the other hand if GST Council fix the rate of Tax on all kinds of low cost processed limestone slabs (produced from RAW slabs only and not to be confused produced from BLOCKS) in India to 5%, then also it may not amount to a decrease of INR 500 Crores per annum, though in actual terms it is not at all a decrease because under VAT regime our finished product was also charged only 5%.
17. From the above statement of point 16, at one end GST Council by reducing a TAX base unnecessarily has bringing loss to itself, where as sm
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e for cheaper quality of Tandur processed stones and tiny & small scale industry owners herein our region are appalled, agitated and frustrated with this arbitrary decision of GST Council which is highly unjustified and either will lead small players to close down their business in longer run or force them to adopt unethical means of moving their material through Bogus bill making mafias since the value of each truck will not exceed Rs. 40,000 (in most cases) which are exempted from e-way bills. So our humble request to the AA/GST Council is not to make honest people to become dishonest.
19. The GST had been rolled out with another great slogan-“One nation, one market and one tax”, whereas ROYALTY is a kind of Tax being paid by a quarry owner on Raw material at pit's mouth and ultimately that burden has to be bear by a RD like us. In this way also at least it is not proper to classify our processed stones under heading 6802 of higher tax bracket rates.
20. In paragraph no. 6 of the
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uts into slabs or tiles and does all other activities thereafter such as POLISHING & SIZING etc. But in our case no such activity is undertaken. Our job is very simple; to bring rough stone slabs and brush polish it's one of the suitable surface, without changing the shape, structure of the stone slab. Therefore the AAR had failed to notify that the reliance placed by them in defining heading 6802 apply only when processes specified therein are undertaken for conversion of blocks into slabs or tiles only.
22. On harmonious reading of Note 1 and Note 6 of Chapter 25 of CET and in view of the opening qualifying phrase Except where the context or Note 4 to this Chapter otherwise requires, used in Note 1 and 'sizing' and 'polishing' being specifically included in Note 6, the inference is obvious that even after the natural stone slabs are subjected to the said processes, the final product would remain classified under Chapter 25; > that, further, the said Chapter Note 1 does not state no
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otes instead of exploring the chapter notes first. Moreover as per the rules of HSN code, we have to mention not more than two digits, which the AAR didn't talk about or considered but explaining us the descriptions of such headings of 4 & 6 digits, which are not relevant to us. When we have raised this issue in our submission, why they have not passed any comment on this is dismaying us a lot!!!
24. Therefore in these circumstances stated herein and submissions made by us, we humbly request this AAAR to declare that our Processed limestone slabs cannot be taken out of Chapter 25. Since we have submitted all possible material which might .helpful this AAAR to declare our goods in Chapter 25, hence there is no need for personal hearing and further AAAR is requested to pass the order on merits of our submissions at the earliest possible.
25. If at all this AAAR finds it difficult to take out processed limestone slabs from Chapter 68 on legally backed grounds unknown to us and better
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2018 of AAR in ANNEXURE-AAI, the AAR while classifying our GOODS had relied upon HCDCS alone but in the above appeal under citation no. 2 the contention of the appellant (who were succeeded with relief) was that HCDCS cannot be relied upon for the classification of GOODS. It is only the Tariff that can be relied upon for the purpose of classification. Therefore the said order of AAR is liable to be quashed and our appeal is to be allowed with relief as asked for.
Therefore it is very clear from the above statement, that even if Customs Tariff taken into consideration though without our admission of the fact (Since Excise Tariff is genuine), then also Chapter note 1 of Chapter 25 is allowing mechanical processes such as CRUSHING, GRINDING / LAVIGATING etc. on minerals in crude form to be retained in said chapter 25 only. Moreover physical processes have also been allowed in said chapter note. If one were to go through the meaning of mechanical process then it states as under:
“Made,
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to get the tiles/slabs which is not possible without atomization of machines which further means no physical force of a labour is required in that process and shape is also changed.
And the AAR had failed to understand this distinguishing factor between a SLAB derived from a natural BLOCK and NATURAL SLAB as brought in by our Unit.
Hence, we humbly request this AAAR to consider these submissions also and declare that our “polished/processed limestone slabs” cannot be taken out of chapter 25″.
5.3. The Appellant was given personal hearing before this Appellate authority on 07-06-2018. Sri Rajgopal Sarda, Proprietor appeared for the hearing and reiterated and explained the various submissions in his appeal. As to the arguments made by the AAR w.r.t. the Explanatory Notes, he mentioned that the AAR was legally not justified in relying upon the Explanatory Notes. He had nothing further to add.
5.4. Vide a letter dated 12/06/2018, the appellant put forth the following further submissio
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3. There is a sequence to be followed for AAR in the following manner:
First connect heading of 2515/2516 with Note 1 of Chapter 25 under Customs Tariff. If still any ambiguity persists in classification of GOODS, then move on to interpretative rules and then explanatory notes. But the AAR have directly gone into second & third option without going into Note 1 of Chapter 25 of Customs Tariff which is actually the first option to explore!!!
4. In note 1 of Chapter 25 under Customs Tariff, It is clearly mentioned that the further processes such as GRINDING, LEVIGATING, MECHANICAL, PHYSICAL done on raw material in crude form are still allowed in same Chapter of 25. Hence our job is nothing but to bring rough limestone slabs which are in crude form and perform polish & cut processes on them which are all nothing but comes under Mechanical processes. Polishing on a rough slab is nothing but grinding only. Even the literal meaning of Levigating is nothing but smooth or polished.
5. Lit
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s such order as it thinks fit, confirming or modifying the ruling appealed against.
7. We now proceed to record our discussions and findings.
8.1. At the outset, it is observed that in the Grounds of Appeal (as also initial application for Advance Ruling), reproduced above, some of the submissions put forth by appellant are to the effect of disputing the GST levy-rate of 28% on limestone slabs (as goods falling under HSN Code 6802) or questioning the basis of and rationale behind fixing such quantum of levy; arguing as to purported discrimination / inequity by citing lesser rate of GST-levy fixed in respect of other products / commodities – Water bottles, marbles, granites etc., and industries/sectors having highly mechanised processes etc., compared to small-scale units and so forth. Certain other submissions are also made by referring to newspaper reports/clippings, GST-captions/slogans, effects of the higher rate on small scale units, employment-aspects, etc.
8.2. We find that su
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the course of the discussion and findings enumerated in the following paragraphs.
8.3. We further observe that the lower Authority's findings in the impugned order are rather concise and do not reflect a detailed examination and analysis of the headings, Chapter Notes vis-d-vis the goods/processes, as ought to have been done in the given context. Moreover, as against totally 5 (five) questions framed for the Advance Ruling by appellant, the Advance Ruling as rendered addresses only the first two questions and not the remaining questions. Though the ruling rendered covering the first two questions would lead to and imply a negation / negative ruling in respect of the remaining three questions, propriety of the proceedings required specific ruling with regard to each question raised.
8.4. Notwithstanding the aforesaid, we note that the statutory mandate vide Section 101 (1) of the Acts, requires this Appellate authority to pass an order, inter-alia, confirming or modifying the Ruling
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the Central Tax (Rate) Notifications8 as also the Headings, Chapter Notes etc., applicable in the given context.
10.2. Levy of GST came into effect from 1-7-2017. The charging Sections, Section 9 (1), in both the Central Goods and Services Tax Act, 201 7 (“CGST Act”/ “the Act”, in short) and the Telangana Goods & Services Tax Act, 201 7 (“TGST Act” / “the State Act”) – collectively referred to as “the Acts” – read as follows:
“9. Levy and collection. (1) Subject to the provisions of sub-section (2), there shall be levied a tax called the central goods and services tax on all intra-State supplies of goods or services or both, except on the supply of alcoholic liquor for human consumption, on the value determined under section 15 and at such rates, not exceeding twenty per cent. , as may be notified by the Government on the recommendations of the Council and collected in such manner as may be prescribed and shall be paid by the taxable person”.
10.3. Notification No. 1/2017-CT (Rate)
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ng or otherwise, into blocks or slabs of a rectangular (including square) shape.
125.
2516 11 00
Granite crude or roughly trimmed
130.
2521
Limestone flux; limestone and other calcareous stone, of a kind used for the manufacture of lime or cement.
137.
2530
Mineral substances not elsewhere specified or included.
SCHEDULE II – 6%
S.No.
Chapter/ Heading/Sub heading/ Tariff item
Description of Goods
(1)
(2)
(3)
51.
2515 12 10
Marble and travertine blocks
52.
2516
Granite blocks
176.
68
Sand lime bricks 10or Stone inlay work
11176A
6802
Statues, statuettes, pedestals; high or low reliefs, crosses, figures of animals, bowls, vases, cups, cachou boxes, writing sets, ashtrays, paper weights, artificial fruit and folia e, etc.; other ornamental goods essentially of stone”;
SCHEDULE III – 9%
S.No.
Chapter/Heading/Sub-heading/Tariff item
Description of Goods
(1)
(2)
(3)
12″26A
2515 12 20, 2515 12 90
Marble and travertine, other than blocks
26B
2516 12 00
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d foliage, etc.; other ornamental goods essentially of stone] 16{except the items covered in Sl.No. 123 in Schedule I}
SCHEDULE IV – 14%
(all these entries later omitted, as indicated below in footnotes)
S.No.
Chapter/Heading/Sub-heading/Tariff item
Description of Goods
(1)
(2)
(3)
1716.
2515 12 20, 2515 12 90
Marble and travertine, other than blocks
1817.
2516 12 00
Granite, other than blocks
1970.
6802
20All goods of marble or granite [other than Statues, statuettes, pedestals; high or low reliefs, crosses, figures of animals, bowls, vases, cups, cachou boxes, writing sets, ashtrays, paper weights, artificial fruit and foliage, etc.; other ornamental goods essentially of stone]”
10.5. The Notification contains an Explanation, relevant portion thereof being as under:
“Explanation. – For the purposes of this notification, –
……….
(iii) “Tariff item “sub-heading” “heading” and “Chapter” shall mean respectively a tariff item, sub-heading, heading and chapter as
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e defined, by the Explanation to the Notification, to be those specified in the First Schedule to the Customs Tariff Act, 1975. The Explanation further provides for application of the Rules for Interpretation, Section Notes, Chapter Notes and General Explanatory Notes, for interpreting the entries in the Notification, as far as the case may be.
11.1. The appellant has contended against lower Authority's reference to and application of Customs Tariff Act / Schedule, entries and Explanatory Notes thereto, on the ground that these have no legal backing; and instead Excise Tariff should have been considered/adopted. However, as detailed supra, the GST-rate notification specifically provides for applicability of the Customs Tariff and related Rules for Interpretation/Explanatory Notes. Thus, appellant's contentions in this regard are found to be not valid, as the statutory Notification makes it abundantly clear that for classification of goods in GST, the Customs Tariff is to be followed.
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t on/in relation to/with regard to the concept/aspect 'manufacture'. The questions of whether or not processes undertaken amount to 'manufacture' or whether it entails change in the characteristics of the products such as nature / description / usage etc., , are not germane for determining the classification of the goods, unless such an aspect is indicated in or made a relevant/integral part of Tariff entries/Chapter Notes etc. In the Customs Tariff.
12.1. Another set of grounds/contentions put forth by appellant in this context, are that the HSN (Harmonised System of Nomenclature) Notes have no legal backing or support and hence, reference to the same by the lower Authority is not correct / not tenable. Reliance in this regard was also placed on the decision of Hon'ble Tribunal in the case of Madhusudan Ceramics vs Collector of Central Excise 1991 (53) ELT 90 Tri Del = 1990 (11) TMI 244 – CEGAT, NEW DELHI. We have examined the contention. The HSN (Harmonised System of Nomenclature) E
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substantive principle of law laid down therein which is applicable to the instant case, since there can be no dispute that the Customs Tariff (which is made applicable by the GST-rate Notification) is based upon and aligned with I-ISN. Hence, we find that reference to HSN Notes for deciding the classification issue involved, as done by the lower Authority, is in principle legally correct and tenable.
12.2. The appellant relied on the case law of Madhusudan Ceramics cited supra, to urge that in the said case the party had contended that HCDCS cannot be relied upon for classification of goods; that the Hon'ble Tribunal decided the issue in favour of the party by allowing their appeal and thereby, it should be considered that Hon'ble Tribunal had upheld the contention as to non-applicability of HCDCS. On perusal of the said case-law, it is observed that though the party made such a plea, the same was neither part of ratio decidendi of the decision nor was the said plea either expressly o
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aragraphs.
14.1. Reverting to the issue in dispute as to the classification of subject goods, the relevant extracts of Chapter 25 of the First Schedule to the Customs Tariff Act, 1975 (hereinafter referred to as Customs Tariff / First Schedule, in short); the Headings 251 5, 251 6, 2521 and 2530 (cited by appellant) as well as Chapter 68 i.e, Heading 6802, along with the relevant Chapter Notes, are reproduced below: (Reference to HSN Explanatory Notes would come into consideration, only in case of any doubt / ambiguity in interpreting / applying these headings/Notes etc. and the same has accordingly been dealt, in the subsequent paragraphs).
“SECTION V MINERAL PRODUCTS
Chapter 25
Salt; sulphur; earths and stone; plastering materials, lime and cement
Notes:
1. Except where their context or Note 4 to this Chapter otherwise requires, the headings of this Chapter cover only products which are in the crude state or which have been washed (even with chemical substances eliminating the
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OF A RECTANGULAR (INCLUDING SQUARE) SHAPE
–
MARBLE AND TRAVERTINE :
2515 11 00
CRUDE OR ROUGHLY TRIMMED
kg.
2515 12
Merely cut, by sawing or otherwise , into blocks or slabs of a rectangular (including square ) shape :
2515 12 10
Blocks
kg.
2515 12 20
Slabs
kg.
2515 12 90
Other
kg.
2515 20
–
Ecaussine and other calcareous monumental or building stone; alabaster :
2515 20 10
Alabaster
kg.
2515 20 90
Other
kg.
2516
GRANITE, PORPHYRY, BASALT, SANDSTONE AND OTHER MONUMENTAL OR BUILDING STONE, WHETHER OR NOT ROUGHLY TRIMMED OR MERELY CUT, BY SAWING OR OTHERWISE, IN TO BLOCKS OR SLABS OF A RECTANGULAR (INCLUDING SQUARE) SHAPE
–
Granite :
2516 11 00
Crude or roughly trimmed
kg.
2516 12 00
Merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape
kg.
2516 20 00
Sandstone
kg.
2
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and agglomerated amber in plates, rods, etc., not worked after moulding jet
kg.
2530 90 20
Natural arsenic sulphides (such as orpiment)
kg.
2530 90 30
Calcite
kg.
2530 90 40
Ores and concentrates of rare earth metals
kg.
2530 90 50
Wollastonite
kg.
2530 90 60
Earth colour ochre, crude
kg.
2530 90 70
Other processed earth colour ochre
kg.
Other :
2530 90 91
–
Strontium sulphate (natural ore)
kg.
2530 90 99
–
Other
kg.
SECTION XIII
ARTICLES OF STONE, PLASTER, CEMENT, ASBESTOS, MICA OR SIMILAR MATERIALS; CERAMIC PRODUCTS; GLASS AND GLASSWARE
Chapter 68
Articles of stone, plaster, cement, asbestos, mica or similar materials
Notes :
1. This Chapter does not cover :
(a) goods of Chapter 25 :
(b) to (n) not reproduced since pertaining to other goods/Chapters etc and hence not relevant.
2. In heading 6802, the expression “worked monumental or building stone” applies not only to the varieties of s
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:
6802 21
Marble, travertine and alabaster :
6802 21 10
Marble blocks or tiles
kg.
6802 21 20
Marble monumental stone
kg.
6802 21 90
Other
kg.
6802 23
Granite :
6802 23 10
Granite blocks or tiles
kg.
6802 23 90
Other
kg.
6802 29 00
Other stone
kg.
–
Other :
6802 91 00
Marble, travertine and alabaster
kg.
6802 92 00
Other calcareous stone
kg.
6802 93 00
Granite
kg.
6802 99 00
Other stone
kg.
14.2. The Rules for Interpretation of the First Schedule to the Customs Tariff Act, 1975 (also referred in the Explanation to Notification No. 1/201 7- Central Tax (Rate) dated 28.06.201 7), read as follows:
“GENERAL RULES FOR INTERPRETATION OF THE SCHEDULE
Classification of goods in this Schedule shall be governed by the following principles:
The titles of Sections, Chapters and sub-chapters are provided for ease of reference only; for legal purposes, c
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y of such material or substance. The classification of goods consisting of more than one material or substance shall be according to principles of rule 3.
3. When by application of rule 2(b) or for any other reason, goods are, prima facie, classifiable under two or more headings, classification shall be effected as follows:
(a) The heading which provides the most specific description shall be preferred to headings providing a more general description. However, when two or more headings each refer to part only of the materials or substances contained in mixed or composite goods or to part only of the items in a set put up for retail sale, those headings are to be regarded as equally specific in relation to those goods, even if one of them gives a more complete or precise description of the goods.
(b) Mixtures, composite goods consisting of different materials or made up of different components, and goods put up in sets for retail sale, which cannot be classified by reference to (a)
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f the suitable surfaces is polished with simple table polish machine. Further, it is cut to square or rectangle shape on a table cutting machine. Some other kind of simple processes like CALIBRATION, TUMBLING etc. are also undertaken”. (unquote).
(2) It is pertinent to note that appellant's description of activities is that apart from polishing and cutting, “some other simple processes like tumbling, calibration etc., are also undertaken”. What is 'tumbling' or 'calibration' have not been detailed / explained by appellant21. Further, usage of word “etc.” as indicated above, denotes further or other processes (i.e, in addition to those specified in application/appeal), which however have not been disclosed / described or specified, either in the application or the appeal. Appellant's description of goods as “polished / processed limestone slabs” – as given in the question framed for advance ruling – in itself bears elements of vagueness / imprecision. That is, while the pre-fixed term
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labs' i.e, where apart from cutting slabs into rectangular/square shapes, only the activity of 'polishing' is done; and
(b) Classification of 'processed limestone slabs' i.e, where apart from cutting slabs into rectangular/square shapes, all the other specified activities viz., polishing, tumbling and calibration are undertaken (and not as merely one of these or a combination of one or more of these).
15.3. On examining the nature of activities i.e, processes mentioned above, we find as follows:
(i) Polishing is the process of smoothening one suitable surface of a given slab, mechanically. Appellant's description thereof in the application (reproduced at para 3.1 above under Nature of activity) is (quote) “to bring rough limestone slabs (a minor mineral) which are by nature uneven in thickness ranging from 15 to 35 mm (or so), to our processing unit and POLISH it's one of the suitable surface with simple table polish machine” (unquote). Though not specifically describing the process
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rary on record, it is considered that only mechanical grinding is undertaken as the method of polishing in respect of goods in question.
(ii) Cutting is described as mechanical cutting of rough slabs into square/rectangular shapes; appellant's description thereof in their application (para 3.1 under Nature of activity) is (quote) “cut it to square or rectangle shape on a table cutting machine”. And in their submissions vide letter dated 12-5-2018, it has been described as: (quote) “..Even CUTTING of sides of a Stone slab is possible only with the application of physical force of a labour against a cutting wheel of a simple machine.”
(iii) However, as stated above, appellant has not described/explained as to the meaning / nature of the processes 'tumbling' and 'calibration'. Hence, recourse is taken to dictionary/technical literature for ascertaining the same. As per the details available on public domain, 'tumbling'23 and 'calibration'24, with regard to stones/slabs, are found to be
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mately same thickness i.e., fairly regular/even, by sawing off/cutting off the protuberant/uneven portion of the under-side surface (i.e, other than the one polished). .
16. Appellant's plea is for classification of the goods under Chapter 25 and in particular reference, under Chapter Headings 2515 / 2516 and alternatively under Headings 2521 or 2530. The Authority held the goods to be correctly classifiable under Heading 6802 of the GST Tariff, for the reasoning given in the impugned order.
17. Before considering the relevant Headings, Notes in Chapters 25 and 68 (and related Explanatory Notes where required), we deem it fit to deal with one of the grounds put forth by the appellant, whereby classification of the goods under Chapter 25 was sought, based on the Titles of the Sections and Chapters in the Tariff-Schedule. The contention is that title of Section V of the Tariff refers to “Mineral products”, Chapter 25 title contains the word “Stone” and hence, these would be applicable
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.e., Calcareous monumental or building stone, that limestone falls under Heading 2515, if apparent specific gravity thereof is 2.5 or more. (Meaning of “Calcareous” as per standard dictionaries and also in common and technical understanding25 is “mostly or partly composed of calcium carbonate – in other words, containing lime or being chalky”. Further elaboration given herein is that “major materials in Limestone sedimentary rock are the minerals calcite and aragonite, which are different crystal forms of calcium carbonate (CaCO3)”)
c) If specific gravity is less than 2.5 the same would fall under Heading 251 6, notwithstanding that Heading 25.1 6 does not contain the word 'calcareous' and mentions only 'other monumental or building stone'. This is in view of the HSN (Harmonised System of Nomenclature) Explanatory Notes for Headings 25.15 and 25.1 6, which read respectively, as follows (the validity of reference to HSN Notes, has been delineated earlier) :
25.15 : “The heading cover
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said headings are considered as equally applicable in the given context, depending on the actual specific gravity thereof.
e) Appellant also claimed alternative classification under Headings 2521 or 2530 with regard to their goods 'polished / processed limestone slabs'. The former Heading, as seen, is applicable to only specified types/forms of limestone i.e, 'limestone flux, limestone and other calcareous stone, of a kind used for the manufacture of lime or cement'. That is, to fall under this Heading the goods should be either 'limestone flux' or 'limestone of a kind Used for manufacture of lime or cement'. There is nothing on record, nor adduced / claimed by the appellant that the goods in question are either limestone flux (which is chiefly employed as a flux in iron and steel industry26) or of the kind used in the manufacture of lime or cement. On the other hand, it is specifically stated by the appellant that the impugned goods are for use in (quote) 'low budget housing needs'
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herefore first examined whether the goods fall under Chapter 25. Classification under Chapter 25 is primarily governed by Note 1 to the said Chapter. The said Chapter Note specifies certain criteria for classification under Chapter 25. These can be analysed as follows: The Note starts with the phrase “Except where their context (..27) otherwise requires, the headings of this Chapter cover..”. This denotes that the description in the Headings is the first and foremost criterion to be considered. If the Headings do not otherwise require/provide, then headings would cover :
(a) only products which are in the crude state, or
(b) products “which have been washed, crushed, ground, powdered, levigated, sifted, screened or concentrated by flotation, magnetic separation or other mechanical or physical processes (except crystallisation) This phrase and construction thereof indicates that the words used therein denote both the state/form in which the goods should be, and the corresponding proc
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cted to other processes i.e, either those specified i.e, roasted, calcined etc., (except when the Heading description allows); or any process beyond that mentioned in the Heading.
19.1. Examining the subject goods in the light of above criteria vis-a-vis the relevant Headings 2515/2516 & Chapter Note, we find as follows:
(a) Headings 2515 and 251 6, both contain similar phrase “whether or not roughly trimmed or merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape”. There are two processes / stages mentioned in this description i.e, (i) roughly trimmed or (ii) cut, by sawing or otherwise, into blocks/slabs of rectangular/square shapes.
(b) The phrase 'roughly trimmed' is not defined in the Chapter/Tariff/Schedule. However, the same is explained in Chapter 25 of the Harmonised System of Nomenclature (HSN) Notes as follows:
“Roughly-trimmed” stone is stone which has been very crudely worked after quarrying, to form blocks or slabs, still
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he HSN. Hence, calibration would not fall under the category of 'roughly trimmed'. As such, is not a permitted process in the Headings.
(e) Process of cutting limestone slabs into square or rectangular shapes (as per surfaces), is admittedly undertaken by the appellant. The said process is specifically mentioned in the description under Headings 2515/2516; and hence is an 'allowed process'.
19.2. With regard to other processes of polishing (including tumbling), these do not find place in descriptions of either Heading 2515 or 2516. The said descriptions also do not expressly provide for exclusion/prohibition of any other process(es). Hence, it is to be seen whether the subject goods / processes of polishing and tumbling as also calibration (which is not covered in Heading description, as detailed supra) are covered by Note 1 to Chapter 25, as analysed earlier.
19.3. The first criterion in the said Note is that goods should be in crude state. The appellant has not claimed that the go
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VIGAT, and the literal meaning of the same is “made smooth, polished'; or
(ii) Polishing is nothing but 'grinding' the surface of the slab (and therefore covered by the word 'ground' used in the Chapter Note); or
(iii) the words/phrase 'mechanical or physical process' would apply to the activity of polishing undertaken by them, as the same was undertaken without changing the structure of the product.
20.2. Above contentions have been examined. It is observed as follows:
A. With regard to the word 'levigated':
(i) On referring to standard dictionaries29, the meaning of 'levigate' (indicated as 'archaic') is found to be given as “to reduce (a substance) to a fine powder or smooth paste”. It is further mentioned that the origin of the word is in mid-1 6th century: from Latin levigat- 'made smooth, polished', from the verb levigare, from levis 'smooth'. Other dictionaries Collins, Merriam Webster etc., also show the meaning of the word, as verb, to be 'reducing / grinding to a smooth,
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it appears that 'levigated' merits consideration as denoting that the goods/product is in the state/form of 'smooth fine powder'. Or by considering that the term powdered' is separately mentioned in the Note as immediately preceding word (which would cover all forms of powdered state whether coarse or fine), the only alternative meaning of 'levigated' as per contemporary prevalence, would be to denote goods in the state/form of/or subjected to process(es) of making into 'smooth paste'.
B. With regard to the word 'ground':
(i) The word 'ground' used in the Chapter Note, in the given context; has been cited by appellant as covering their activity of 'polishing' by mechanical grinding. However, here again, the said word appears along with the other words 'crushed', powdered etc., which refer to the processes of reducing substances to lesser size / finer particles / powdered forms.
(ii) Further, the said word 'ground' appears in Heading / sub-heading description of various products und
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stand-alone phrase, but used in conjunction with the earlier words/phrases which qualifies it. For ready reference, the said Chapter Note, is again reproduced as under:
“1. Except where their context or Note 4 to this Chapter otherwise requires, the headings of this Chapter cover only products which are in the crude state or which have been washed (even with chemical substances eliminating the impurities without changing the structure of the product), crushed, ground, powdered, levigated, sifted, screened, concentrated by flotation, magnetic separation or other mechanical or physical processes (except crystallization), but not products that have been roasted, calcined, obtained by mixing or subjected to processing beyond that mentioned in each heading”.
(ii) In the above text, the words “screened, concentrated” appear in continuation followed by description of processes “flotation, magnetic separation or other mechanical or physical processes..”. This would denote a construction /
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. .” (conjunction highlighted).
(iii) The meaning denoted with the use of the conjunction 'or' as above, appears to be apt, as otherwise, if only the word -'concentrated' has to be reckoned as qualifying the subsequent words/phrases 'flotation, magnetic separation or other mechanical or physical processes' – the same would not reflect a contextually relevant or true meaning, since processes of flotation, magnetic separation cannot be said to be used only for 'concentration'; more so since the earlier words in the Note include sifted / screened etc. Therefore, the above said phrase in Chapter Note I of Tariff, read with the HSN Explanatory Notes, merits to be considered as denoting that the processes mentioned 'flotation, magnetic separation or other mechanical or physical processes' as applicable, to one or more of the earlier appearing words 'washed crushed, ground, powdered, levigated, sifted, screened or concentrated'. Consequently, the phrase “other mechanical or physical process
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sed by appellant for the words 'levigated', 'ground' and 'other mechanical or physical process' appearing in Chapter Note 1, do not find sustainability or legal support, as analysed supra.
20.4. It follows from the above discussion that the processes of 'polishing', 'tumbling' and 'calibration'; or the state of goods as polished / tumbled / calibrated are not covered by Note 1 to Chapter 25 of the Customs Tariff Act, 1 975.
21. Before arriving at a definite conclusion in this regard, we deem it fit to now also refer to the HSN Explanatory Notes pertaining to Chapter 25 and the headings 251 5/251 6 therein; which read as follows: (the relevant extracts are highlighted (underlined)):
“Chapter 25
Salt; sulphur; earths and stone; plastering materials, lime and cement
Notes…………………(Chapter Notes similar to those in Customs Tariff Act Schedule referred earlier hence not reproduced).
GENERAL
As provided in Note 1, this Chapter covers, except where the context otherwise req
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,' provided that such addition does not render the product particularly suitable for specific use rather than for general use. Minerals which have been otherwise processed (e.g., purified by recrystallisation, obtained by mixing minerals falling in the same or different headings of this Chapter, made up into articles by shaping, carving, etc.) generally fall in later Chapters (for example, Chapter 28 or 68).
In certain cases, however, the headings :
(1) Refer to goods which by their nature must have been subjected to a process not provided for by Note 1 to this Chapter. Examples include pure sodium chloride (heading 25.01), certain forms of refined sulphur (heading 25.03 V chamotte earth (heading 25.08), plasters (heading 25.20), quicklime (heading 25.22) and hydraulic cements (heading 25.23).
(2) Specify conditions or processes which are admissible in those cases in addition to those allowed generally under Note 1 to this Chapter. For example, witherite (heading 25.11), siliceous
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by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape (+).
–
Marble and travertine :
2515.11
Crude or roughly trimmed
2515.12
Merely cut, by sawing or otherwise, into blocks or slabs of a rectangular (including square) shape
2515.20
Ecaussine and other calcareous monumental or building stone; alabaster
Heading Notes:
Marble is a hard calcareous stone, homogeneous and fine-grained, often crystalline and either opaque or translucent. Marble is usually variously tinted by the presence of mineral oxides (coloured veined marble, onyx marble, etc.), but there are pure white varieties.
Travertines are varieties of calcareous stone containing layers of open cells.
Ecaussine is extracted from various quarries in Belgium and particularly at Ecaussines. It is a bluish-grey stone with an irregular crystalline structure and contains many fossilised shells. On fracture Ecaussine shows a granular surface similar to granite and is theref
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8.02. The same classification applies to blanks of articles.
The heading also excludes:
(a) Serpentine or ophite (a magnesium silicate sometimes called marble) (heading 25.16),
(b) Limestone (known as “lithographic stone” and used in the printing industry) (heading 25.30 when in the crude state).
(c) Stones identifiable as mosaic cubes or as paving flagstones, even if merely shaped or processed as specified in the text of this heading (heading 68.02 or 68.01 respectively).
Subheading 2515.11
For the purposes of this subheading, “crude” refers to blocks or slabs which have been merely split along the natural cleavage planes of the stone. Their surfaces are often uneven or undulating and frequently bear marks of the tools used to separate them (crowbars, wedges, picks, etc.).
This subheading also covers unshaped stone (quarrystone, rubble) obtained by breaking out rocks from the quarry face (using picks, explosives, etc.). They have uneven, broken surfaces and irregular edges. Thi
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faces. If care was taken with the sawing, these traces may be very slight In such cases, it is useful to apply a sheet of thin paper to the stone and to nib it gently and evenly with a pencil held as flat as possible. This often reveals saw marks even on carefully sawn or very granular surfaces.
This subheading also covers blocks and slabs of a rectangular (including square) shape obtained otherwise than by sawing, e.g., by working with a hammer or chisel.
22.1. From the above extracts of the HSN, especially the highlighted portions, it is evident that the HSN Explanatory Notes also reflect the restriction as to only certain specified processes being allowed on the products for a classification under Chapter 25. The said Notes further specify and give illustrative details of other processes which, if undertaken, entails classification under other Chapters, as follows:
(i) The General Notes in HSN under Chapter 25 specify that “Minerals which have been otherwise processed .. generall
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f undertaken would attract application of the said explanation. The list of these mentioned processes, is also not exhaustive as seen from “etc.” appearing after “chamfered”.
22.2. In view of the above, as per HSN notes also, slabs which have been 'polished', tumbled and/or calibrated WOUld be covered by exclusions detailed in both General Note to Chapter 25, as well as the Heading Note to Heading 2515.
23. Based on the above detailed analysis, we find that in sum, the goods in question, limestone slabs, have admittedly been subjected to processes of 'polishing' (including tumbling) and calibration, in addition to being cut to rectangular/square shapes. The said processes, except that of cutting, are not among those specified either in the Heading description or the Chapter Note 1, for an eligible classification under Chapter 25. Hence, classification of the subject goods under Chapter 25 i.e, specific Headings 2515 /2516 remains precluded by virtue of description in said Headings as
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abs under Chapter 25 by considering that in their earlier Final Order No. A/1740-1744/WZB /AHD/2012 dated 27-12-2012 = 2013 (9) TMI 648 – CESTAT AHMEDABAD, the issue was held in favour of the same assessee; and the said Final Order was accepted by the Department and hence that the ratio of the earlier order would apply. Thus, in this decision, Hon'ble Tribunal has not given specific findings. We have therefore referred to the earlier Final Order dated 27-12-2012 = 2013 (9) TMI 648 – CESTAT AHMEDABAD cited therein, which is available with citation Classic Marbles vs CCE„ Vapi 2013 (293) ELT. 563 (Tri-Ahmd.) = 2013 (9) TMI 648 – CESTAT AHMEDABAD. In this decision, Hon'ble Tribunal while deciding the classification issue involved, referred to various other judgments, including Oriental Trimex Ltd. 2010 (249) ELT. 259 (Tri-Dei). =2009 (8) TMI 454 – CESTAT, NEW DELHI, Nitco Tiles Ltd. 2004 (165) ELT.50 (Tri-Mum). = 2003 (10) TMI 467 – CESTAT, MUMBAI.
24.3. We find that in the above j
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Chapter Note incorporated in the Central Excise Tariff, process of 'polishing' came to be included in Chapter 25, which was accordingly considered by the Hon'ble Tribunal. It is pertinent to note that the words “or polishing” in the above said Note 6 to Chapter 25, were omitted by the Finance Act, 2012.
24.4. We therefore find that the aforesaid decisions were rendered in totally different context i.e, Central Excise duty levy which is on 'manufacture', coupled with existence of Chapter Notes deeming 'polishing' to be manufacture in a given period; and further the decisions therein, were based on specific facts of cases vis-d-vis certain applicable clarifications issued by the Board (Central Board of Excise & Customs) etc. We find that in these case-laws, the issue of classification under the competing entries of Chapters 25 and 68 de hors the aspect of 'manufacture' does not find specific examination and analysis. As such, we find that the said case law of Classic Marble cited by ap
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01; mosaic cubes and the like, of natural stone (including slate), whether or not on a backing; artificially coloured granules, chippings and powder, of natural stone (including slate)”.
In the above entry, the relevant part meriting consideration for the issue on hand would be whether subject goods are covered by the expression “worked monumental or building stone and articles thereof”; the subsequent portion of the entry being not relevant. The phrase 'monumental or building stone', is the same as appearing in Headings 251 5/251 6 (with prefix 'calcareous' and 'other' respectively). Notes to Chapter 68 in the Tariff-Schedule, as earlier reproduced, do not define the word “worked” nor contain any explanation / description as to the meaning/scope thereof31. In view of the same, a reference is to be made to the HSN, which as stated supra, is a safe guide for classification purposes, as laid down by Hon'ble Supreme Court.
27.2. Extracts of HSN Notes for Chapter 68, the relevant portion
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orm rather than the nature of the constituent material. Some are obtained by agglomeration (e.g., articles of asphalt, or certain goods such as grinding wheels which are agglomerated by vitrification of the binding material); others may have been hardened in autoclaves (sand-lime bricks). The Chapter also includes certain goods obtained by processes involving a more radical transformation of the original raw material (e.g., fusion to produce slag wool, fused basalt, etc.).
Further text “Articles obtained by …….” to exclusion clause (g) “Original sculptures….”, being not relevant, not reproduced.
Heading description:
68.02
Worked monumental or building stone (except slate) and articles thereof, other than goods of heading 68.01; mosaic cubes and the like, of natural stone (including slate), whether or not on a backing; artificially coloured granules, chippings and powder, of natural stone (including slate).
6802.10
–
Tiles, cubes and similar articles, whether or
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vers stone which has been further processed than mere shaping into blocks, sheets or slabs by splitting, roughly cutting or squaring, or squaring by sawing (square or rectangular faces).
The heading thus covers stone in the forms produced by the stone-mason, sculptor, etc., viz.:
(A) Roughly sawn blanks; also non-rectangular sheets (one or more faces triangular, hexagonal, trapezoidal, circular, etc.).
(B) Stone of any shape (including blocks, slabs or sheets), whether or not in the form of finished articles, which has been bossed (i.e., stone which has been given a rock faced “finish by smoothing along the edges while leaving rough protuberant faces), dressed with the pick, bushing hammer, or chisel, etc., furrowed with the drag-comb, etc., planed, sand dressed, ground, polished, chamfered, moulded, turned, ornamented, carved etc.
The heading therefore includes not only constructional stone (including facing slabs) worked as above, but also articles such as…..
Stone slabs formi
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pecially the highlighted parts, it may be seen that the meaning/scope of the word 'worked' is not separately and specifically delineated in the HSN Notes also. However, the said word is used at various places denoting certain illustrative and not exhaustive list of processes. From a reading of the above Notes and keeping in view those under Chapter 25, referred earlier, it can be seen that:
(i) Minerals / mineral products figure in both Chapter 25 and Chapter 68.
(ii) The distinction for classifying under either of the Chapters lies in the level of activities / processes undertaken on the goods.
(iii) That is, to fall under Chapter 25, the goods should be either crude or subjected to only those processes/stages which are specified in the relevant Heading-description or Note 1 to Chapter 25. Any processes undertaken beyond those specified for Chapter 25 purpose, would take the goods out of purview of the said Chapter.
(iv) Once the goods fall out of Chapter 25, they would fall under
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h is also described as 'beyond the stage of normal quarry products of Chapter 25'.
(viii) Any further process than mere shaping into slabs by cutting, also would render the goods to fall under Heading 6802.
(ix) Amplification / illustrations to the above Note, specifies that the heading covers stone in the forms produced by stone mason, sculptor etc.„( here again, usage of word “etc.”, shows that the same is not exhaustive to restrict it to products made by a stone mason or sculptor only).
(x) Stone of any shape, including slabs, which may or may not be in the form of finished articles but which have been, among others, 'polished' is also covered in the heading. Herein again, the list of processes i.e., bossed, dressed with the pick, bush-hammer, chisel Polished, chamfered, turned… is not exhaustive, as evident from the multiple usage of “etc.” therein. Also, the enumeration of processes is not cumulative so as to require that all the processes should be undertaken on a give
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s grounds/contentions against classification of the subject goods under Chapter 68 / Heading 6802 are that Heading 6802 applies only to shaped articles and further worked by a stone-mason or sculptor, whereas the limestone slabs are simply polished & cut which does not change morphology, character, name, description, purpose and usage of the stone; hence, these processes would not take the classification out of Chapter 25. We are unable to accept this contention. As detailed above, the Heading 6802, apart from articles, also specifically covers stone in the description itself i.e. “worked monumental or building stone.. and articles thereof”. The same, coupled with the HSN Explanatory Notes, as detailed and analysed above, show that such stone (limestone slabs, in the instant context) which have been 'worked' beyond the processes mentioned in Chapter 25 on the one hand and 'polished' as specified under Chapter 68 in particular reference to slabs (blocks etc.,) has to be classified under
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was further urged that by the very description of the said goods, without any prefix or adjective also, these would include polished varieties and hence, the same analogy would apply to the goods limestone slabs.
On examining, we find that in the Central Tax Rate Notification, the goods Marble and Granite are mentioned by description in certain entries, with the classification under Chapter 25 (Headings 2515 or 251 6, as the case may be) with reference to specific subheading / Tariff Item Number. However, the description against said sub-heading numbers, is given with a qualification/restriction as 'blocks' or 'other than blocks'. The same corresponds to the fact that Marble and Granite, by the said names, are specified in the Headings 2515, 251 6 respectively; and again in respect of certain specific sub-headings.
Appellant's argument that by mere description, the words 'marble' or 'granite' in the Notification would include polished, is only an assumption; since no such indication
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pend upon criteria for classification, as per Chapter Notes, Rules for Interpretation etc, read with HSN notes. In essence, here again it depends on the nature / level of processing undertaken; whereby if these are in crude state or subjected to specific processes (detailed in HSN also), they would be classifiable under Chapter 25 and if worked beyond that, including polishing, they would be classifiable under Chapter 68 under any of the above subheadings, as applicable. In Notification No. 1/2017-Central Tax (Rate) dated 28.06.2017; against the Heading 6802, the description appearing in Heading 6802 of Customs Tariff has been as such incorporated (with certain specified exceptions/exclusions), pursuant to the amendment effective from 15-11-2017 (Sl.No. 177E of the Notification refers). As such, specific mention of Marble, Granite does not appear in the description against Heading 6802 in the Notification, since the said Heading along with the description, encompasses coverage of Marbl
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ication of goods, for GST-levy purposes; and as such cannot be of any relevance.
(c) It has further been contended that 'as per rules of HSN Code', the appellant has to mention only two digits, whereas the Authority has considered 4-digit or 6-digit classification which are not relevant to them. We find that this contention of the appellant is also not in proper appreciation of the facts and statutory provisions. Classification of goods, as per the GST-Notifications, merits to be determined by considering the relevant entries, Notes in the Customs Tariff Schedules, which provide for upto 8-digit classification, at the ultimate specification levels. The mention of 'two-digit' classification, under GST, is only a procedural relaxation given in respect of reporting in the statutory returns. The same has no bearing/relevance with regard to the primary question of determination of classification of the goods, as per the Tariff Schedule.
(d) Appellant also contended that findings of lower
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fied under Heading 6802 of the Tariff Schedule.
31.1. In view of the foregoing, we find that the appellant has not made out a case against the decision in impugned Advance Ruling in so far as it has been ruled that “Polished / Processed Limestone slabs are. correctly classifiable under heading 6802 of the GST Tariff (sic)”. The classification under Chapter Heading 6802 of the First Schedule to the Customs Tariff Act, 1975 is the appropriate classification of the said goods (both 'polished' only as well as 'processed', as referred at para 15.2 supra), in view of the relevant Heading-description read with the Chapter Notes and HSN Explanatory Notes; as discussed and analysed above.
31.2. In terms of sub-classification under Heading 6802, the said goods would fall under Tariff Item No. 6802 92 00 – “Other calcareous stone”; considering that limestone slabs are 'calcareous stone', as stated earlier and keeping in view the structure of grouping under Heading 6802 read with Rules for Inter
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pter Heading 6802 (Tariff Item No. “6802 92 00 – Other calcareous stone”) of the Schedule.
C)
Can we put them under 'Mineral substances not elsewhere specified or included” which is mentioned under HSN Code 2530?
The goods Polished/ Processed Limestone slabs do not fall under HSN Code – Chapter Heading 2530 of the Schedule.
D)
Can we retain them under any of the I-ISN Codes 2515/2516/2521 ?
The goods Polished / processed Limestone slabs do not fall under HSN Codes i.e, Chapter headings 2515 / 2516 / 2521 of the Schedule.
E)
Can we retain them under HSN Code 25 with inaugural phrase of “Goods not mentioned elsewhere” as mentioned at the start of column of 5% ?
The goods would not fall under Chapter 25 of the Schedule, in view of the above discussion and findings.
33. Accordingly, we pass the following
ORDER
The Advance Ruling given vide TSAAR Order No. 02/2018 dated 25-03-2018 = 2018 (6) TMI 458 – AUTHORITY FOR ADVANCE RULING HYDERABAD TELANGANA passed by the Telangana State
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form for Advance Ruling', which requires furnishing “Statement containing applicant's interpretation of law……”.
5. Para No. (14) as given in the appeal, apparently referring to the said Sl.No. in the prescribed format Form GST ARA-02 for 'Appeal to the Appellate Authority for Advance Ruling'. Sl.No. 14 as per format is athe facts of the case (in brief)”.
6. Para No. (15) as given in the appeal, apparently referring to the said Sl.No. in the prescribed format Form GST ARA-02 for 'Appeal to the Appellate Authority for Advance Ruling'. Sl.No. 15 as per format is “Grounds of Appeal”.
7. Questions framed by the appellant for Advance Ruling, and consequently this appeal pertain to only the classification under specified headings. The said questions, as framed, do not require ruling with regard to applicable rates of GST for the subject goods. Accordingly, the issue is considered w.r.t. the appropriate classification of the subject goods. Needless to state, rates of GST applicable on s
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erted by (B)(xiv) of Notification No.27/2017-Central Tax (Rate) dated 22.09.2017.
11. Inserted by (B (xv) of Notification No.27/2017-Central Tax (Rate) dated 22.09.2017.
12. Entry Sl.No.s 26A and 26B inserted by (C)(xii) of Notification No. 41/2017- Central Tax (Rate) dated 14-11-2017 with effect from 15-11-2017.
13. Inserted by C (xii) of Notification No. 34/2017- Central Tax (Rate) dated 13.10.2017
14. Entries in Col. (2) & (3) against Sl.No.177A above, were substituted vide C (xlix) of Notification No. 41/2017- Central Tax (Rate) dated 14.11.2017 w.e.f. 15-11-2017.
15. Inserted by C (1) of Notification No. 41/2017- Central Tax (Rate) dated 14.11.2017 w.e.f. 15-11-2017.
16. Phrase in {} inserted by (C)(v) of Notification No.18/2018-Central Tax (Rate) dated 26th July, 2018, effective from 27th July, 2018.
17. Sl.No. 16 omitted by (D)(i) of Notification No. 41/2017- Central Tax (Rate) dated 14-11-2017 effective from 15-11-2017.
18. Sl.No. 17 omitted by (D)(i) of Notification No
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l goods essentially of stone]” by (D)(iv) of Notification No.27/2017-Central Tax (Rate) dated 22.09.2017.
21. In fact, in the application as well as grounds of appeal, in entirety, only the process of 'polishing' has been referred/emphasised/highlighted by appellant, without any further reference to tumbling or calibration which are only mentioned in the description of 'nature of activity involved').
22. This Order would not be applicable in case of any difference / deviation, in respect of the one or more of above facts/aspects, which has not been brought on record by appellant in the present proceedings, in view of provisions vide sub-Section (2) of Section 103 and sub-Section (1) of Section 104 of the Acts.
23. https://En.wikipedia.org
24. www.pavingexpert.com
25. https://en.wikipedia.org
26. HSN Explanatory Notes to Heading 25.21 refers.
27. The phrase herein reads “or Note 4 to this Chapter otherwise requires” which is not relevant since Note 4 deals with goods falli
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M/s Lloyd Insulation (I) Ltd. Versus CGST & CE, Ujjain
Central Excise
2019 (1) TMI 899 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 7-8-2018
Appeal No. E/51477/2018-DB – Final Order No. 53489/2018
Central Excise
Mr. Anil Choudhary, Member (Judicial) And Mr. Bijay Kumar, Member (Technical)
Shri Pachanadhan, Advocate, Shri C.L. Dangi, Advocate – for the appellant
Ms. Tamana Alam, D.R. – for the respondent
ORDER
Per Bijay Kumar:
Being aggrieved with the impugned order, the Order-in-Appeal No. IND-EXCUS-000-APP-611-17-18 dated 15.2.2018, the appellant has filed the present appeal. In the impugned order the ld. Commissioner (Appeals) has modified the order passed by the original adjudicating authority to the extent that penalty imposed was reduced to 50% under the provisions of Section 11AC(1)(c) of the Central Excise Act, 1994 (hereinafter referred to as 'Act') with effect from 18.4.2011.
2. Briefly stated, the facts of the case are that the appell
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Appeals) has passed the order modifying the order passed by the primary adjudicating authority.
3. Ld. Advocate on behalf of the appellant submits that the ld. Commissioner (Appeals) has erred while passing the impugned order on the ground that he has not followed the departmental instruction while confirming the demand. The departmental instructions are binding on the departmental authority, for which reliance was placed on CCE Vs. Dhiren Chemicals – 2002 (139) ELT 3 (SC). The department vide circular clarified the issue regarding inclusion of freight charge.
4. It was also submitted by the ld. Advocate that the appellant were selling their products in following ways:
(a) The finished goods are directly sent to customers and transportation charges incurred are borne by the customers themselves. In such case the transportation charges are shown separately in the invoice and the place of removal of the goods were factory gate and, therefore, no Central Excise duty on the transportati
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e. However, audit proposed in such cases that the transportation charges should be added in the assessable value and duty should accordingly be discharged which are not in accordance with Rule 5 of Central Excise Valuation (Determination of Price of Excisable Goods) Rules, 2000.
(c) In some of the cases in absence of order from customers the goods were sent to the depot for further sales. In such cases care was taken that the price of the goods remained the same or higher than the price which were for the goods sold at the factory gate. It is the version of the department that the appellant had contravened the provisions of Rule 5 and Rule 7 of Central Excise Valuation Rule, 2000 read with Section 4 of the Act. Inasmuch as the appellant while selling their goods through depot, have shown the freight amount separately and recovered the same from the depot but failed to include the same for the purpose of discharge of Central Excise duty. The period involved is 2011-2012 to 2014-2015 fo
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ppellant in respect of the goods sold at factory gate did not confirm the provisions of Rule 5 of Central Excise Valuation Rules, 2000 and relied upon the following case law :
(i) CCE Vs. Prakash Cables – 2013 (295) ELT 745;
(ii) Kunal Enterprises Vs. CCE – 2013 (294) ELT 613;
(iii) CCE Vs. PRS Rolling Mills Pvt. Ltd. – 2012 (281) ELT 560;
(iv) CCE Vs. Star Oxochem Pvt. Ltd. – 2013 (289) ELT 165.
(e) Further, the reliance was placed on the CBEC Circular No. 988/12/2014-CX. dated 20.10.2014 (supra) wherein para 5 it is clarified as under :
“It may be noted that there are very well laid rules regarding the time when property in goods is transferred from the buyer to the seller in the Sale of Goods Act, 1930 which has been referred at paragraph 17 of the Associated Strips case reproduced below for ease of reference:
“17. Now we are to consider the facts of the present case as to find out when did the transfer of possession of the goods to the buyer occur or when did the property
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that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer. Such assent may be expressed or implied and may be given either before or after the appropriation is made. Sub-section (2) of Section 23 further provides that where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purposes of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract.”
(f) It was also contested by the ld. Commissioner finding 'that the contention of the appellant regarding confirmation of duty of Rs. 1,44,998/-, I find that the appellant have not put forth the copy of purchase order and invoices elaboration the facts that how the goods ar
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the reliance was placed on the judgement delivered by Hon'ble Supreme Court in case of M/s Pragati Concrete Products (P) Ltd. Vs. CCE – 2005 (183) ELT 487 (Tri.-Bang.). The decision of the Tribunal was challenged by the department before the Supreme Court and Hon'ble Supreme Court dismiss the departmental appeal as reported 2015 (322) ELT 819 (SC). It was also submitted that in the case of Arviva Industries (I) Ltd. Vs. CCE – 2005 (179) ELT 506 (Tri.-Mum.) that if the records of the appellant have been audited periodically and no objection has been raised by the audit officer regarding the method of valuation adopted, subsequently suppression of fact cannot be alleged. As regular audits of the unit were being conducted in terms of guideline fixed by the CBEC the extended period is not applicable in this case.
5. The ld. AR on behalf of the Revenue, supports the impugned order and submits that the Commissioner (Appeals) has given detailed order regarding the inclusion of freight amoun
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ailable and freight is borned separately by the customer in view of the decision cited supra, the same is not includible in the assessable value. It is also on record that the demand has been raised as per the audit objection and the entire activity of appellant was known to the department. Based on the decision in following cases, we find that; M/s Pragati Concrete Products (P) Ltd. (supra) and Arviva Industries (I) Ltd. (supra), the extended period invocable in this case. The same view has also expressed in the cases of CCE Vs. Tigrania Metal & Steel Industries – 2001 (132) ELT 103 (Tri.-Del.), Collector of C. Ex. Vs. Cadila Laboratories P Ltd. – 2000 (124) ELT 411 (Tribunal), Sunshine Tube (Pvt.) Ltd. Vs. CCE – 2001 (136) ELT 231 (Tri.-Bang.) and Jaishri Engineering Co. (Pvt.) Ltd. Vs. Collector of C. Ex. – 1989 (39) ELT 449 (Tri.). We are, therefore, of the considered opinion that in this case the entire demand is also time barred as the extended period is not available to the depa
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GST INPUT REFUND ON SUPPLIES MADE TO SEZ UNIT
Query (Issue) Started By: – TAHA CHECHATWALA Dated:- 6-8-2018 Last Reply Date:- 16-8-2018 Goods and Services Tax – GST
Got 10 Replies
GST
Dear All,
Our client is providing services to a SEZ unit and accordingly claims refund of GST paid on inputs utilized for the purpose of such services. Our client files its GSTR 1 on monthly basis and accordingly claims refund of tax paid on inputs for that particular month.
My query is, if suppose our client provides services in the month of july and made purchases for that purpose but the project does not get completed in july and continues in the month of august. Now in august also our client made some purchases and paid tax on them. Project
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in making supply in the month of aug. Hence July input refund is eligible.
Reply By TAHA CHECHATWALA:
The Reply:
Thank you experts for your kind reply.
Reply By KASTURI SETHI:
The Reply:
Dear Querist,
My views are as under :-
* Your client is talking of claim for refund of tax (input tax) on inputs or input services used in making zero- rated supplies and NOT talking of claim for refund of IGST paid on outward supplies to SEZ Unit.
* Your client is to prove that ITC has been accumulated (unutilised) due to exports or supplies to SEZ Unit and NOT to prove the payment of IGST on outwards supplies.
* Your client should be concerned with sufficient credit balance during the relevant tax period.
* There is no requirement of one-to
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l does not accept the net ITC column to have number more than the credit availed for the month as per Electronic Credit Ledger.
Illustration
Credit availed in July – total ITC 40,000/- . No outward SEZ supplu invoice raised in July.
Credit availed in August – ₹ 70,000/-. Outward sez supply raised in August.
So legally assessee is eligible to claim a refund of entire ITC of ₹ 1,10,000/-.
However at the time of filing RFD-01A, statement 5A does not allow to enter refund amount more than ₹ 70,000/-. Thus as of now, you can claim refund of only ITC availed in August.
Should wait for the portal to be reconfigured.
Reply By TAHA CHECHATWALA:
The Reply:
Thank You Mr Vijay Singh. We are facing the same problem as illustrat
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ANTI-PROFITEERING IN GST-YET ANOTHER COMPLAINT DISMISSED
By: – Dr. Sanjiv Agarwal
Goods and Services Tax – GST
Dated:- 6-8-2018
As per GST law in India, the GST law contains a unique provision on anti-profiteering measure as a deterrent for trade and industry to enjoy unjust enrichment in terms of profit arising out of implementation of Goods and Services Tax in India, i.e., anti-profiteering measure would obligate the businesses to pass on the cost benefit arising out of GST implementation to their customers.
Anti-profiteering Clause
Section 171 provides that it is mandatory to pass on the benefit due to reduction in rate of tax or from input tax credit to the consumer by way of commensurate reduction in prices.
Anti profiteering measures will help check price rise and also put a legal obligation on businesses to pass on the benefit. This will also help in instilling confidence in citizens. It may be noted that the anti-profiteering measure in GST law is meant to
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galore [reported in 2018 (7) TMI 1490 – NATIONAL ANTI-PROFITEERING AUTHORITY ]. The National Anti-profiteering Authority (NAA) ordered that there was no anti-profiteering established and the complaints was not maintainable and was therefore, dismissed.
According to the factual matrix, the applicant had ordered a Godrej Interio Slimline Metal Almirah through Flipkart on 4th November. 2017 and a tax invoice dated 07.11.2017 for ₹ 14852/- was issued by the supplier, M/s Godrej & Boyce Mfg Co. Ltd., Mumbai. However, at the time of delivery, another invoice dated 29.11.2017 was issued by the Supplier for an amount of ₹ 14,152/-. The Applicant had alleged that he had paid an amount of ₹ 14,852/- to the Flipkart and the excess amount charged should have been refunded to him. It was also alleged that non-refund of differential amount was resorting to profiteering in contravention of provisions of section 171 of the CGST Act, 2017.
This was investigated by Standing Committee
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cribed rate of 18% on the base price of Rs. 11,993.87/- and thus he had not increased the earlier base price after coming in to force of the GST. The discount of Rs. 500/- which was offered earlier had been withdrawn by the Supplier vide his invoice dated 29.11.2017 which did not amount to profiteering. Also, the excess amount of GST paid by the Applicant @ 28% at the time of placing order was to be refunded by the Respondent as the same had been reduced to 18% at the time of delivery on 29.11.2017. It was recommended that there had been no profiteering by the Supplier and hence there was no violation of the provisions of the CGST Act, 2017.
On the other hand, respondent (Flipkart) submitted that the excess amount of tax collected by him. The DGAP vide his letter dated 11.05.2018 had informed that as per the letter dated 27.4.2018 received from the Respondent the excess amount of Rs. 700/-collected from the Applicant had been refunded on 18.01.2018. Further, it was only offering a mar
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nclusion that the base price of the Supplier was Rs. 11,993.75/- and on the cum-tax price a discount of Rs. 500/- was offered. It is also revealed that the Almirah was supplied to the Applicant by the Supplier vide invoice dated 29.11.2017 in which the base price was again shown as Rs. 11,993.87/- and GST of Rs. 2158/- was charged @ 18%, as the same had been reduced by the Government of India on 14.11.2017 from 28% to 18%. Therefore, it is clear that the Supplier had charged correct rates of GST which were prevalent at the time of placing of the order and the supply of the Almirah through the above two invoices, therefore, no illegality had been done by the Supplier while executing the order placed by the Applicant. It is also apparent from the record that the Supplier had not changed the base price of Rs. 11,993.75/- which was prevalent at the time of booking on 4.11.2018, at the time of delivery on 29.11.2017. Hence the Supplier has not resorted to profiteering by increasing his base
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ST was charged @ 28% on orders placed by payees before 15.11.2017 but supplies were made against them after reduction of rate to 18%, NAA directed the Flipkart to ensure that different refund of excess tax is made to buyers without any delay.
In larger public interest and based on market practices, anticipating that there could be more such cases, NAA also directed the Director General of Audit, Central Board of Indirect Taxes and Customs vide letter No. NAA/2018/DO/08/211 dated 24.5.2018 to audit the major e-platforms and submit its findings to the Authority.
End Note
Going by the performance of NAA, it is clear that its very objective seem to have been defeated, firstly due to its late set up and secondly, its reactive approach by which it could only deal with just half a dozen of complaints. It is yet to take suo moto action on malpractices prevalent in the market place. NAA is yet to book a case against any supplier.
Also, there are various vague areas such as arbitrariness in
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SUPPLY OF FOOD OR DRINK IN A MESS OR CANTEEN IN AN EDUCATIONAL INSTITUTE
By: – DR.MARIAPPAN GOVINDARAJAN
Goods and Services Tax – GST
Dated:- 6-8-2018
GST Rate
Vide Notification No. 11/2017-Central Tax (Rate), dated 28.06.2017 the Central Government fixed various rates of tax for supply of services. Vide Sl. No. 7 the rates for various supplies in regard to accommodation, food and beverages services under SAC 9963 as detailed below-
(i) Supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or drink, where such supply or service is for cash, deferred payment or other valuable consideration, provided by a restaurant, eating joint including mess, canteen, neither having the facility of air – conditioning or central air -heating in any part of the establishment, at any time during the year nor having licence or permit or by whatever name called to serve alcoholic liquor for human co
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y of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink, where such supply or service is for cash, deferred payment or other valuable consideration, provided by a restaurant, eating joint including mess, canteen, having the facility of air-conditioning or central air-heating in any part of the establishment, at any time during the year – 9%;
(v) Supply, by way of or as part of any service or in any other manner whatsoever in outdoor catering wherein goods, being food or any other article for human consumption or any drink (whether or not alcoholic liquor for human consumption), as a part of such outdoor catering and such supply or service is for cash, deferred payment or other valuable consideration. 9%;
(vi) Accommodation in hotels, inns, guest houses, clubs, campsites or other commercial places meant for residential or lodging purposes having declared tariff of a unit of accommodation of two th
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The Notification did not impose any condition in availing input tax credit.
Amendment in Notification No. 46/2017-CT (Rate)
The Central Government brought amendment to Sl. No. 7 vide Notification No. 46/2017-CT (Rate), dated 14.11.2017 as detailed below-
* Sl.No. 7(i) has been amended with the reduced tax rate at 2.5% –
Supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or drink, where such supply or service is for cash, deferred payment or other valuable consideration, provided by a restaurant, eating joint including mess, canteen, whether for consumption on or away from the premises where such food or any other article for human consumption or drink is supplied, other than those located in the premises of hotels, inns, guest houses, clubs, campsites or other commercial places meant for residential or lodging purposes having declared tariff of any unit of accommodation of ₹ 7500/- an
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upply of such service is an exempt supply and attracts provisions of section 17(2) of the Central Goods and Services Tax Act, 2017 and the rules made there under.
* Sl.No. 7(iii) has been amended as follows with tax rate @ 9% with no condition for availing input tax credit-
Supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink, where such supply or service is for cash, deferred payment or other valuable consideration, provided by a restaurant, eating joint including mess, canteen, whether for consumption on or away from the premises where such food or any other article for human consumption or drink is supplied, located in the premises of hotels, inns, guest houses, clubs, campsites or other commercial places meant for residential or lodging purposes having declared tariff of any unit of accommodation of ₹ 7500/- and above per unit per day or equivalent.
* Sl. .No. 7(iv) ha
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ate), then the same is exempt. [Sl. No. 66(a) of notification No. 12/2017-Central Tax (Rate) refers].
* If the catering services, i.e., supply of food or drink in a mess or canteen, is provided by anyone other than the educational institution, then it is a supply of service at entry 7(i) of notification No. 11/2017-CT (Rate) [as amended vide notification No. 46/2017-CT (Rate) dated 14.11.2017] to the concerned educational institution and attracts GST of 5% provided that credit of input tax charged on goods and services used in supplying the service has not been taken, effective from 15.11.2017.
GST on catering services in train
Vide Order No.2/2018-Central Tax, dated 31.03.2018 the Board clarified that with a view to remove any doubt or uncertainty in the matter and bring uniformity in the rate of GST applicable for all kinds of supply of food and drinks made available in trains, platforms or stations, it is clarified with the approval of GST Implementation Committee, that the GST
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ommodation of ₹ 7500/-and above per unit per day or equivalent. – 2.5% subject to the condition no input tax credit is available.
* Explanation 1 to this provides that this item includes such supply at a canteen, mess, cafeteria or dining space of an institution such as a school, college, hospital, industrial unit, office, by such institution or by any other person based on a contractual arrangement with such institution for such supply, provided that such supply is not event based or occasional.
* Explanation 2 to this provides that this item excludes the supplies covered under sl. No. 7(v) which is the supply, by way of or as part of any service, of goods, being food or any other article for human consumption or any drink, at Exhibition Halls, Events, Conferences, Marriage Halls and other outdoor or indoor functions that are event based and occasional in nature.
The Notification inserted Sl. No. 7(ia) as follows-
* Supply, of goods, being food or any other article for hu
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Seeks to lay down the special procedure for completing migration of taxpayers who received provisional IDs but could not complete the migration process
31/2018 Dated:- 6-8-2018 Central GST (CGST)
GST
CGST
CGST
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
Notification No. 31/2018 – Central Tax
New Delhi, the 6th August, 2018
G.S.R. 742 (E).- In exercise of the powers conferred by section 148 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on the recommendations of the Council, hereby specifies the persons who did not file the complete FORM GST REG- 26 of the Central Goods and Services Tax Rules, 2017 but received only a Pro
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REG-26
Yes/No
5
Contact details of the taxpayer
5a
Email id
5b
Mobile
6
Reason for not migrating in the system
7
Jurisdiction of Officer who is sending the request
(ii) On receipt of an e-mail from the Goods and Services Tax Network (GSTN), such taxpayers should apply for registration by logging onto https://www.gst.gov.in/) in the “Services” tab and filling up the application in FORM GST REG-01 of the Central Goods and Services Tax Rules, 2017.
(iii) After due approval of the application by the proper officer, such taxpayers will receive an email from GSTN mentioning the Application Reference Number (ARN), a new GSTIN and a new access token.
(iv) Upon receipt, such taxpayers are required to furnish the following details to GS
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Seeks to exempt payment of tax under section 9(4) of the CGST Act, 2017 till 30.09.2019.
22/2018 – Central Tax (Rate) Dated:- 6-8-2018 Central GST (CGST) Rate
GST
CGST Rate
CGST Rate
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
Notification No. 22/2018 – Central Tax (Rate)
New Delhi, the 6th August, 2018
G.S.R. 743 (E).- In exercise of the powers conferred by sub-section (1) of section 11 of the Central Goods and Services Tax Act, 2017 (12 of 2017), the Central Government, on being satisfied that it is necessary in the public interest so to do, on the recommendations of the Council, hereby makes the following further amendment in the notification of the Gove
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Seeks to exempt payment of tax under section 5(4) of the IGST Act, 2017 till 30.09.2019.
23/2018 Dated:- 6-8-2018 Integrated GST (IGST) Rate
GST
IGST Rate
IGST Rate
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
Notification No. 23/2018 – Integrated Tax (Rate)
New Delhi, the 6th August, 2018
G.S.R. 744 (E).- In exercise of the powers conferred by sub-section (1) of section 6 of the Integrated Goods and Services Tax Act, 2017 (13 of 2017), the Central Government, on being satisfied that it is necessary in the public interest so to do, on the recommendations of the Council, hereby makes the following amendment in the notification of the Government of India, in the
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Seeks to exempt payment of tax under section 7(4) of the UT GST Act, 2017 till 30.09.2019
22/2018 Dated:- 6-8-2018 Union Territory GST (UTGST) Rate
GST
UTGST Rate
UTGST Rate
Government of India
Ministry of Finance
Department of Revenue
Central Board of Indirect Taxes and Customs
Notification No. 22/2018 -Union Territory Tax (Rate)
New Delhi, the 6th August, 2018
G.S.R. 745 (E).- In exercise of the powers conferred by sub-section (1) of section 8 of the Union Territory Goods and Services Tax Act, 2017 (14 of 2017), the Central Government, on being satisfied that it is necessary in the public interest so to do, on the recommendations of the Council, hereby makes the following amendment in the notification of the Governmen
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M/s Dharampal Premchand Ltd Versus Commissioner Central Goods And Service Tax
Central Excise
2018 (8) TMI 552 – SC Order – TMI
SUPREME COURT OF INDIA – SC
Dated:- 6-8-2018
Special Leave Petition (Civil) Diary No(s). 9329/2018
Central Excise
Mr. Navin Sinha J. [In Chamber]
For the Petitioner(s) : Mr. A.P. Sinha, Adv. And Mr. Brajesh Kumar, AOR
For the Respondent(s) : None
ORDER
The learned counsel for the petitioner seeks permission to withdraw the special leave petition
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M/s Shree Ram Lime Products Private Limited Versus Union Of India And Ors.
GST
2018 (8) TMI 587 – RAJASTHAN HIGH COURT – TMI
RAJASTHAN HIGH COURT – HC
Dated:- 6-8-2018
D. B. Civil Writ No. 11337/2018
GST
MR. PRADEEP NANDRAJOG AND MR. DINESH MEHTA JJ.
For Petitioner(s) : Mr. Prateek Gattani. Mr. Sanjay Jhanwar.
Order
1. Issue notice to the respondents through registered AD post returnable within four weeks.
2. Additionally, the standing counsel nominated by respondents w
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Notification to lay down the special procedure for completing migration of taxpayers who received provisional IDs but could not complete the migration process under HGST Act, 2017.
73/GST-2 Dated:- 6-8-2018 Haryana SGST
GST – States
Haryana SGST
Haryana SGST
HARYANA GOVERNMENT
EXCISE AND TAXATION DEPARTMENT
Notification
The 6thAugust, 2018
No.73/GST-2 In exercise of the powers conferred by section 148 of the Haryana Goods and Services Tax Act, 2017 (19 of 2017), the Governor of Haryana, on the recommendations of the Council, hereby specifies the persons who did not file the complete FORM GST REG-26 of the Haryana Goods and Services Tax Rules, 2017 but received only a Provisional Identification Number (PID) (hereinafter re
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Email id
5b
Mobile
6
Reason for not migrating in the system
7
Jurisdiction of Officer who is sending the request
(ii) On receipt of an e-mail from the Goods and Services Tax Network (GSTN), such taxpayers should apply for registration by logging onto https://www.gst.gov.in/) in the “Services” tab and filling up the application in FORM GST REG-01 of the Haryana Goods and Services Tax Rules, 2017.
(iii) After due approval of the application by the proper officer, such taxpayers will receive an email from GSTN mentioning the Application Reference Number (ARN), a new GSTIN and a new access token.
(iv) Upon receipt, such taxpayers are required to furnish the following details to GSTN by e-mail, on or before the 30th September, 2018, to
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Seeks to exempt payment of tax under section 9(4) of the CGST Act, 2017 till 30.09.2019.
(22/2018) FD 48 CSL 2017 Dated:- 6-8-2018 Karnataka SGST
GST – States
Karnataka SGST
Karnataka SGST
FINANCE SECRETARIAT
NOTIFICATION (22/2018)
No: FD 48 CSL 2017, Bengaluru, dated: 06-08-2018.
In exercise of the powers conferred by Sub-Section (1) of Section 11 of the Karnataka Goods and Services Tax Act, 2017 (27 of 2017), the Government Of Karnataka, on being satisfied that it is necessar
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In Re: CMS Info Systems Ltd.,
GST
2018 (8) TMI 977 – APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – 2018 (15) G. S. T. L. 727 (App. A. A. R. – GST), [2019] 71 G S.T.R. 396 (AAAR)
APPELLATE AUTHORITY FOR ADVANCE RULING, MAHARASHTRA – AAAR
Dated:- 6-8-2018
MAH/AAAR/SS-RJ/04/2018-19
GST
SHRI RAJIV JALOTA, AND SMT. SUNGITA SHARMA MEMBER
PROCEEDING
(under section 101 of the Central Goods and Service Tax Act, 2017 and the Maharashtra Goods and Service Tax Act, 2017)
At the outset, we would like to make it clear that the provisions of both the CGST Act and the MGST Act are the same except for certain provisions. Therefore, unless a mention is specifically made to such dissimilar provisions, a reference to the CGST Act would also mean a reference to the same provisions under the MGST Act. Further, the CGST Act, 2017 and MGST Act, 2017, sometimes, shall also be referred as GST Act.
M/s CMS Info Systems Limited (herein after referred to as the “Appellant”) had fi
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llant purchases raw motor vehicles and requisite fabrication, get them converted to cash carry vans. The appellant also pays GST on fabrication. For this purpose, the appellant purchases motor vehicle and pays GST. Credit of GST is not availed by the appellant presently. While purchasing Cash Carry Vans during pre-GST era, the appellant has paid the Central Excise Duty as well as Value added Tax.
3. When these vans cannot be used further, the appellant sells these motor vehicles as scrap. In certain cases, instead of purchasing motor vehicles, the appellant prefers to hire these motor vehicles.
4. The Appellant had approached the Advance Ruling Authority (AAR) for seeking an advance ruling under Section 97(1) of the CGST Act, in respect of the following questions:
I. Whether supply of such motor vehicles as scrap after its usage can be treated as supply in the course or furtherance of business and whether such transaction would attract GST? If yes, please provide the rate of G
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applicant has not provided any invoice or has informed tariff heading of these goods. Further, it is also not clear whether after sale these would be usable as vehicles or would be fully scrapped. As the said goods do not appear in the notification no. 2/2017-C.T. (Rate) which exempts the goods from the levy of GST, these taxable supply would be taxed at rates mentioned in the Notification No. 1/2017-C.T. (Rate), which may be referred by the applicant accordingly.
6. Regarding the issue raised in the Question II of the application, wherein it was asked that if the sale of the cash carry van, as scrap after its usage, held a taxable supply, whether Input Tax Credit is available to CMS Info Systems Limited on purchase of such motor vehicles i.e. cash carry vans which are used for cash management business and supplied, post usage, as scrap, there was difference in opinion on this particular issue between two members of the Advance Ruling Authority. Therefore, the matter has been referre
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ion (1) of Section 18, input tax credit shall not be available in respect of the following, namely:-
(a) motor vehicles and other conveyance except when they are used-
(i) for making the following taxable supplies, namely:-
(A) further supply of such vehicles or conveyances; or
(B) Transportation of passenger; or
(C) Imparting training on driving, flying, navigating such vehicles or conveyances;
(ii) for transportation of goods;
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9. As per the meaning assigned to “goods” under clause (52) to Section 2 of the CGST Act, money is excluded from the ambit of the “goods”. Section 2(52) is reproduced below:
Section 2. Definition – In this Act, unless the context otherwise requires,-
(1)………………..
(2)……………….
(52) “goods” means every kind of movable property other than money and securities but includes actionable claims, growing crops, grass and things attached to or forming part of the land which ar
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order, traveler cheque, money order, postal or electronic remittance or any other instrument recognized by the Reserve Bank of India, only when used as consideration to settle the obligation or exchange with Indian legal tender of another denomination would be considered as “money”.
12. In the instant case, the currency transported by the appellant is for the purpose of carrying out the business of maintaining ATMs by the Appellant and hence, the Appellant are not using the same as a consideration for settling of any obligation. The job assigned to the appellant is for the transportation of currency to the desired destination as per their customer banks and while carrying out the activity of transportation, the said currency is plain goods for the Appellants and cannot be used/is not used in exchange of other Indian legal tender of another denomination.
13. In other words, although in general understanding, what is being transported by the appellants is currency or cash or money, fr
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(5)(a)(ii) of CGST Act.
16. Section 2 of the CGST Act assigning meanings to various terms used under CGST Act begins with the expression “In this act, unless context otherwise requires”. Normally, the term 'means' makes the definition exhaustive one but such exhaustive definition has to be departed from if the definition section opens with the word “unless context otherwise requires” if there be something in the context to show that the definition could not be applied.
17. In the present case, the context in which the cash carry vans are used for transportation of currency is that the goods of the customer banks are transported by the Appellant and not the money as defined under Section 2 (75) of the CGST Act as the said currency cannot be used as money as understood in the common parlance. Further, the intention of the legislature in excluding money from the definition of “goods” is not to levy CGST on supply of money as otherwise CGST is leviable on supplies of intra- state
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ttached to a motor car or the personal luggage of passengers travelling in the vehicle;
(14) 'goods carriage' means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods;
(47) 'transport vehicle' means a public service vehicle, a goods carriage, an educational institutions bus or a private service vehicle;
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20. Notification No. 2/2017-Central Tax (Rate) dated 28.06.2017 at Sr. No. 117 provides full exemption for Rupee notes when sold to Reserve Bank of India falling under chapter/heading 48/4907 would also substantiate the Appellants' claim that currency is covered under “goods”.
21. The certificate of registration and also certificate of fitness issued by the Motor Vehicle Department of Govt, of Maharashtra certifying cash carrying vans to be a 'goods carrier' and 'goods vehicle' also support the Ap
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teena- 2015 (329) ELT 750 (GOI)
25. The Applicant refers to the view expressed by both the Hon'ble Members to the effect that there is no issue of admissibility when the vehicle is carrying bullion. In the present case vehicle is capital goods under Section 2 (19) and hence even if it is used in stray cases in transportation of bullion input tax credit is admissible as there is no bar from taking credit and in any case, the Appellant are not making any exempt supplies.
26. With the above submission and those made in their applications and additional submissions, it is humbly prayed for holding that Appellant are eligible and entitled for input tax credit of GST paid by them to vehicle manufacturers for supply of standard vehicles and GST paid on the fabrication. The Appellate Authority for Advance Ruling may also be pleased to hold cash carry vans would be covered under exclusion clause of 17(5)(a)(ii) of CGST.
SUBMISSION MADE BY THE RESPONDENT
27. In response to the above subm
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e banking industry also the money is not goods. Therefore, in the context of the situation in which the appellant is working, 'money' cannot be considered as 'goods'. Accordingly, only because the definition of 'goods' under the CGST Act, 2017, contains the phrase “unless the context otherwise require” does not mean that, the context of the appellant requires a definition of goods is different from one as prescribed in the CGST Act, 2017.
30. The appellant contention that provision of Motor Vehicle Act and the exclusion of money from the scope of e-Way bill should take precedence over the provisions of the CGST Act, 2017, has been made without having any rational or basis. It is emphasized that the CGST Act has provided an unambiguous and clear definition of 'goods'. Therefore, there is no need for resorting to the provisions of Motor Vehicle Act for looking for the meaning of 'goods'. Further, the exclusion of the 'money' from the scope
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ortation of “money” as the transportation of “goods”. Further to substantiate their claim, they also cited court rulings.
33. Countering the arguments made by the Appellant, Shri Anil Kumar, Supdt., the departmental Representative, inter alia, stressed on the definition of 'goods' provided under Section 2(52) of the CGST Act, arguing that the definition of the 'goods' provided in the statute clearly excludes money from its purview, and under no circumstances can be treated as goods. To corroborate their claim, he argued that the cash carry van used for transporting money is not an ordinary vehicle, but a special purpose vehicle, which is deployed for transport of the currency under the supervision of the security guards carrying arms with them and 2 other supervisors as per the guidelines prescribed by the Reserve Bank of India dated 06.04.2018. Thus the money transported by the said special purpose vans, is different from 'goods' defined under the GST law, sin
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ncy that is held for its numismatic value. Since the cash carry vehicles are deployed to carry cash and bullion for other than for numismatic purposes, the cash carried by them is to be construed as money and not goods.
36. It has also come to our notice from the Press Note dated 21st July 2018, available in open source, on the subject of Recommendations made during the 28l meeting of the GST Council held in New Delhi on 21st July, 2018 titled 'Amendments to the CGST Act, 2017, IGST Act, 2017, UTGST Act 2017, and GST (Compensation to States) Act, 2017' that the 28th GST Council in their meeting held on 21/07/2018 has inter alia proposed to widen the scope of the ITC to cover the ITC even in respect of motor vehicles used for transportation of money for or by a banking company or financial institution, as quoted below:
PRESS NOTE July 21, 2018
Recommendations made during the 28t meeting of the GST Council held in New Delhi on 21st July, 2018 Amendments to the CGST Act
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to its employees, under any law for the time being in force……….
This new fact, which has come before us during the course of deciding the instant issue, also needs to be considered solemnly, before concluding our observation in the present case. The fact that the GST Council, the recommendation of which body forms the basis for formulation of the legislature related to GST, has felt the need for widening the scope of ITC by allowing the ITC in respect of motor vehicles used for transportation of money for or by a banking company or financial institution, which were previously not available to them, clearly shows that the intention of the legislature was earlier to not treat 'money' as 'goods', as defined under Section 2(52) of the CGST Act. Now the GST Council have recommended to the Government to lay before the legislature an amendment in the provision which will extend the benefit of ITC in respect of the motor vehicles, used for transportation of money for or
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the latter half of the clause (b) of Section 8(3) of the Central Sales Tax Act, 1956 will include the “newspaper” even after the amendment of the said act in order to extend the benefit of the concessional rate of Central Sales Tax payable by the publishers on the inter-state purchase of raw materials under the notion that the Appellant cannot be in more unfavorable position as the intention of the legislature was not to increase the tax burden on the printers or publishers of the newspaper. Thus, it has been argued that the Supreme Court had deviated from the plain or literal meaning of the amended definition of the “goods” under the Central Sales Tax Act and has gone on to extract the meaning of the expression of “goods” by following the Golden Rule of interpretation as the literal meaning was leading to the unintended result and absurdity. However, in the instant case, neither had there been any amendment in the GST law nor were there any benefits continuing to the Appellant, which
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ent interpretation of the meaning of goods.
(c) Thomas Cook (India) Ltd. v. Collector of Customs, New Delhi [1994(71) E.L.T. 724 (Tri)].
The cited case is related to the confiscation of the foreign currency exported by post parcels in violation of the provisions and rules prescribed under Customs Act, 1962 and Foreign Exchange Regulation Act, 1973. In the instant case, the money, which has been clearly defined in the CGST Act, is being transported by the Appellant at the behest of the Banks under the contracts entered with them. Further, “goods” has also been defined in the CGST Act, which clearly excludes money from its ambit. Thus it is very much clear that the things which are being transported by the Appellant is “money” which cannot be treated as “goods” as explained above.
Therefore, in the instant case, there is no need to derive the interpretation of the “goods” from the Customs Act or Foreign Exchange Regulation Act, when the same is clearly defined under the CGST Act
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Motor Vehicle Act, 1988, does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle, which does not hold good in terms of the provision made in the CGST Act,2017. Accordingly, reliance placed by the Appellant upon the definition of the “goods” provided under the Motor Vehicles Act, 1988 is not relevant in the instant case. Also, the provisions under the CGST Act being independent and not made referential to the provisions under the Motor Vehicles Act, the clarification under the said act is not germane to the issue.
(f) As regards the reliance placed by the Appellant on Rule 138(14) which carves out goods the transportation of which would not require the preparation of e-way bill, we agree with the view of the Jurisdictional Officer that the exclusion of the 'money' from the scope of the e- way bill has no bearing on the definition of the 'goods' prov
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nterpreted for suiting the requirement of any individual as claimed by the Appellant. If 'Money' is not covered as 'Goods' in the definition of 'Goods' under CGST Act, then it is not 'goods' for everyone and it cannot be said that it is not 'goods' for general perception and it is 'goods' for the Appellant.
The argument of the Appellant that, although in general understanding, what is being transported by the appellants is currency or cash or money, from the Appellant's point of view or for the appellant, what is transported is 'goods' and not 'money', does not support their cause, as the definitions provided in Acts are universal and same cannot be interpreted for suiting the requirement of any individual as claimed by the Appellant. If 'Money' is not covered as 'Goods' in the definition of 'Goods' under CGST Act, then it is not 'goods' for everyone and it cannot be said that it is not
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